Dane County judge allows 1849 abortion case to move forward

A Dane County judge ruled on Friday that a case challenging Wisconsin’s 1849 abortion ban may continue, moving the dispute over the 19th-century law a step closer to the Wisconsin Supreme Court.

Judge Diane Schlipper rejected a motion by Sheboygan District Attorney Joel Urmanski, one of the three DAs named as defendants, to dismiss the lawsuit, which seeks to overturn the state’s pre-Civil War felony abortion ban. In her decision, Schlipper said that the 1849 law applies to feticide, not abortion. 

Attorney General Josh Kaul filed the case shortly after the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision in June 2022, which eliminated federal abortion protections enshrined in Roe v. Wade and sent decisions about the issue back to states. 

Kaul argues that the 1849 ban is unenforceable because it conflicts with newer laws, including a 1985 law that was passed after Roe v. Wade and that restricts abortions only after the point of fetal viability. 

Wisconsin abortion providers ceased performing the procedure throughout the state following the Dobbs decision due to uncertainty about the law. Physicians, including those who later joined the case that was the subject of Schlipper’s ruling on Friday, have asked for clarity about when it’s legal to provide consensual abortions, fearing that they could be prosecuted under the 1849 felony statute. 

Schlipper indicated in the ruling that she believes the law applies to feticide, not to consensual abortions. She wrote that Urmanski has no basis for prosecuting physicians who perform consensual abortions because the statute doesn’t apply to abortion. 

“This pre-Roe statute says nothing about abortion — there is no such thing as an “1849 Abortion Ban” in Wisconsin,” Schlipper wrote. 

Part of Schlipper’s analysis in the ruling includes considering the technical definition of feticide according to a leading law dictionary: “the act or instance of killing a fetus by assaulting and battering the mother, especially the act of unlawfully causing the death of a fetus” or an “intentionally induced miscarriage.” 

Schlipper wrote that this is “different from the technical definition of abortion, which is very long but begins with ‘[a]n artificially induced termination of a pregnancy for the purpose of destroying an embryo or fetus.’”

Kaul said in a statement that the “ruling is a major victory in our fight to restore reproductive freedom in Wisconsin.” 

“While this ruling does not resolve the case and won’t be the final word in this litigation, the court’s thorough decision makes clear that Wis. Stat. § 940.04(1) should not be interpreted to criminalize consensual abortions,” Kaul continued. 

Schlipper’s decision means the  case will continue in Dane County Court, but it is widely expected, no matter the outcome, to one day reach the Wisconsin Supreme Court, which will flip to a liberal majority in August when Judge Janet Protasiewicz takes her place on the bench.

Gov. Tony Evers, who has supported the lawsuit since it was filed, reacted to the ruling on Twitter, saying it was “good news and a critical step in our fight to end our state’s criminal abortion ban and restore the reproductive freedom women had in Wisconsin until #SCOTUS overturned #Roe last June. We must restore access to safe, legal abortion in Wisconsin.”