Wisconsin Supreme Court justices clash over 175-year-old law banning abortions

 

MADISON, Wis. (CBS 58) -- Justices on the state Supreme Court clashed during oral arguments over a 19th century law that bans abortions in most cases except for the life of the mother.

The court, controlled 4-3 by liberals, will decide whether the state's 1849 law banning abortion can be enforceable in modern times.

During oral arguments, liberal justices appeared to disagree and grew frustrated when discussing the 175-year-old law that does not provide any exceptions for rape or incest.

"I fear that what you are asking this court to do is sign the death warrants of women, children and pregnant people in this state," Justice Jill Karofshy told a conservative prosecutor defending the law. "Under your interpretation, they could all be denied life-saving medical care…this is a world gone mad."

Liberal Justice Rebbeca Dallet also raised concerns the law was passed during "a time when the only people who had rights were white men."

The case reached the state Supreme Court after a Dane County judge ruled the 1849 law does not apply to consensual abortions. Instead, they concluded it bans feticide, which is attacking a pregnant woman and destroying her pregnancy.

It prompted Planned Parenthood to resume offering the procedure after clinics stopped performing abortions for 15 months out of fear they would be prosecuted under the pre-Civil War law.

Sheboygan County District Attorney Joel Urmanski, a Republican, appealed the decision and is now asking justices to throw out the lower court ruling.

Urmanski believes the 1849 ban should be enforceable because he contends it was never repealed after Roe v. Wade was overturned.

Matthew Thome, Urmanski's attorney, argued that the statute can also co-exist with the 1985 law lawmakers passed that outlawed abortions too.

It was an argument that conservative Justice Brain Hagedorn seemed to agree with.

"The judiciary doesn't get to edit laws, the judiciary doesn't get to rewrite them…how can we say we can't simply enforce it anymore?"

Justice Janet Protasiewicz, a liberal who was elected to the bench in 2023, made limited remarks during oral arguments after she spoke openly during her campaign about her support for abortion rights.

Her election flipped the ideological balance on the court from a 4-3 conservative majority to liberal. It marked the first time in 15 years liberals secured control of the state’s highest court.

A decision on the abortion lawsuit is expected to come in a matter of weeks.

Justices have also been asked to declare that abortion rights are protected in the state constitution. Planned Parenthood of Wisconsin filed the lawsuit in February.

In a petition to the court, Planned Parenthood alleges the state constitution guarantees a woman's right to an abortion relating to "life, liberty, and the pursuit of happiness," and therefore includes "the right to determine what one does with one's own body, including whether and when to have a child."