The liberal majority of the Wisconsin Supreme Court on Wednesday ruled 4-3 to strike down a 176-year-old law that made it a crime for anyone other than the mother to intentionally end the life of an unborn child.
The ruling means that abortions remain legal in Wisconsin up to around 20 weeks after fertilization and keeps in place a December 2023 decision from a lower court judge that said the abortion ban was not in effect.
The 1849 law, which had been blocked in 1973 by Roe v. Wade, was re-litigated after the Supreme Court ruled in June 2022 that there is no constitutional right to an abortion. The four liberal justices on the court said the Wisconsin legislature had effectively repealed the 1849 law by passing subsequent pro-life laws in the years after Roe.
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“We conclude that, under the unique circumstances presented here, the legislature impliedly repealed [the 1849 law] as to abortion by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how healthcare providers may lawfully perform abortions,” Justice Rebecca Dallet wrote in the majority opinion. “That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion.”
In a dissent, conservative Justice Annette Ziegler argued that the liberal majority had disregarded the law through a “novel” approach and failed to identify a specific statute that repealed the 1849 law.
“The majority opinion is a jaw-dropping exercise of judicial will, placing personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law,” she wrote. “In this dangerous departure from our constitutional design, four members of the court make up and apply their own version of implied repeal, failing to hew to any semblance of traditional judicial decision-making or jurisprudence.”
Ziegler added that the majority arbitrarily chose which abortion laws to remain in effect.
Democratic Attorney General Josh Kaul sued several Wisconsin district attorneys over the 1849 law, arguing that the legislature implicitly repealed it. Sheboygan County District Attorney Joel Urmanski defended the law in court, arguing that later pro-life laws passed did not supersede the original 1849 law.
“The Wisconsin Supreme Court’s role is to follow the Constitution, not to make law,” Wisconsin GOP chair Brian Schimming said in response to the court’s decision. “This issue should be resolved in the legislature and by voters, not by far-left justices parading as legislators.”
Liberals have held a firm grip on the court for the last two years, easily winning judicial races in both 2023 and 2025, which has kept the court’s ideological slant leaning to the Left. The court last week refused to hear challenges to Wisconsin’s current congressional map, after Democrats argued that the boundaries illegally favor Republicans, leaving the current map in place for the 2026 midterm elections.
