MADISON, Wis. — The Wisconsin Supreme Court will hear oral arguments Monday on whether a law passed by lawmakers more than a decade before the Civil War bans abortion and can still be enforced.
Abortion rights advocates have an excellent chance of prevailing, given that liberal justices control the court and one of them noted on the campaign trail that she supports the right to abortion. abortion. Monday’s arguments are little more than a formality before a decision, which is expected to take weeks.
Wisconsin lawmakers passed the state’s first ban on abortion in 1849. This law stated that anyone who killed a fetus unless the act was intended to save the life of the mother was guilty of involuntary manslaughter. About a decade later, lawmakers passed laws making it illegal for a woman to attempt to induce her own miscarriage. In the 1950s, lawmakers revised the text of the law to make it a crime to kill an unborn child or kill the mother with the intent to destroy her unborn child. The revisions allowed one doctor, in consultation with two other doctors, to perform an abortion to save the mother’s life.
The landmark Roe v. Wade of the U.S. Supreme Court in 1973, legalizing abortion nationwide, struck down Wisconsin’s ban, but lawmakers never repealed it. When the Supreme Court overturned Roe two years ago, conservatives argued that Wisconsin’s ban was enforceable again.
Democratic Attorney General Josh Kaul filed a lawsuit challenging the law in 2022. He argued that a 1985 Wisconsin law allowing abortions before a fetus can survive outside the womb trumps on the ban. Some babies can survive with medical help after 21 weeks of gestation.
Sheboygan County Prosecutor Joel Urmanski, a Republican, argues that the 1849 ban should be enforceable. He claims that it has never been repealed and that it can coexist with the 1985 law because this law has at no time legalized abortion. Other modern restrictions on abortion also don’t legalize the practice, he says.
Dane County Circuit Judge Diane Schlipper ruled last year that the old ban banned feticide — which she defined as the killing of a fetus without the mother’s consent — but not consensual abortions . The ruling encouraged Planned Parenthood to resume providing abortions in Wisconsin after halting the procedures following Roe’s overturn.
Urmanski in February asked the state Supreme Court to overturn Schlipper’s decision without waiting for lower appeals courts to rule first. The court agreed to take up the case in July.
Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly on whether there is a constitutional right to abortion in the state. The court agreed in July to also take up this case. The justices have not yet scheduled oral arguments.
Convincing the Court’s liberal majority to uphold the ban seems nearly impossible. Liberal Justice Janet Protasiewicz said openly during her campaign that she supports abortion rights, a major departure for a judicial candidate. Usually, these candidates refrain from speaking about their personal opinions to avoid any appearance of bias.
The court’s three conservative justices accused liberals of playing politics with abortion.
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