Wisconsin prosecutors can’t bring charges against providers who perform elective abortions under an 1849 law that criminalizes the killing of a fetus, the state’s top court said.
Comprehensive “legislation enacted over the last 50 years regulating in detail the ‘who, what, where, when, and how’ of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion,” a deeply divided Wisconsin Supreme Court said Wednesday.
A four-justice majority said lawmakers impliedly repealed the provision, and it therefore doesn’t ban abortion in Wisconsin.
The decision “is an important step forward in ensuring access to abortion in Wisconsin,” said Michelle Velasquez, an chief strategy officer at Planned Parenthood of Wisconsin.
“While we celebrate this ruling, there is more to be done,” Velasquez said. Planned Parenthood of Wisconsin “will continue working to protect and expand reproductive freedom in Wisconsin so that everyone who needs comprehensive reproductive health care in our state can get the nonjudgmental and compassionate care they deserve,” she said.
Heather Weininger, executive director of Wisconsin Right to Life, called the decision “deeply disappointing decision for those of us who believe every human life has inherent value and deserves legal protection from the moment of conception.”
“The court didn’t point to a single state statute that specifically repealed” a statute that has been in effect for over 175 years, Weininger said. “To assert that a repeal is implied is to legislate from the bench,” she said.
“Wisconsin Right to Life will continue working with state legislators, partner organizations, and our grassroots network to restore and strengthen protections for the unborn across Wisconsin,” Weininger said.
The closely watched case is one of several that sprung up in states that never officially repealed criminal abortion statutes after Roe v. Wade made the procedure legal nationwide, but adopted various provisions regulating abortion. Anti-abortion advocates argued that those old laws went back into effect after the US Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization.
Wisconsin Attorney General Josh Kaul (D) argued the law had been indirectly repealed due to the enactment of more modern laws. He brought a case against Sheboygan Country District Attorney Joel Urmanski and other county prosecutors, who interpreted the law as prohibiting abortions and intended to enforce it.
The provision prohibits intentionally destroying “the life of an unborn child,” except when necessary to save the life of the pregnant person. It was originally used to prosecute people who performed abortions, but hasn’t been used since Roe, the court said. Lawmakers have adopted a myriad of other measures regulating abortion in the last 50 years, it said.
The Wisconsin Supreme Court affirmed a lower court’s holding that the law doesn’t apply to abortion.
Justice Rebecca Frank Dallet wrote the opinion, joined by Chief Justice Jill J. Karofsky and Justices Ann Walsh Bradley and Janet C. Protasiewicz.
But the depth of the state’s political divide was apparent in the dissenting opinions.
Justice Annette Kingsland Ziegler filed a dissenting opinion in which she called the majority decision “a jaw-dropping exercise of judicial will.” It misapplied the doctrine of implied repeal, she said.
Rebecca Grassl Bradley also dissented. The decision was based solely on the “policy predilections of its members,” constituting “a raw exercise of political power.”
Justice Brian Hagedorn, joined by Bradley, said the decision didn’t derive “from a neutral application of the law.” Instead, “the court aggrandizes power to itself, rewrites the law in its own image, and undermines our constitutional order,” he said.
Also on Wednesday, the state’s top court dismissed as moot a separate case Planned Parenthood of Wisconsin filed against the same defendants, which argued that the Wisconsin Constitution protects the right to bodily autonomy, including the explicit right to abortion.
The justices granted review in that case in July 2024—a decision the dissenting justices assailed in the dismissal order.
Abortion is legal in Wisconsin up to 20 weeks after fertilization.
The Attorney General’s Office represented the plaintiffs. Attolles Law SC represented Urmanski.
Planned Parenthood has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Law is operated by entities controlled by Michael Bloomberg.
The cases are Kaul v. Urmanski, Wis., No. 2023AP002362, 7/2/25 and Planned Parenthood of Wis. v. Urmanski, Wis., No. 2024AP330-OA, 7/2/25.
Allie Reed in Boston also contributed to this story.
To contact the reporter on this story:
To contact the editor responsible for this story: