The Supreme Court of Wisconsin has ruled that a statute from 1849, which prohibited nearly all abortions, is currently unenforceable. The ruling, handed down on Wednesday, found that the Wisconsin legislature had effectively repealed the ancient statute through more recent abortion legislation over the past five decades. The court’s majority opinion reflects the argument made by Attorney General Josh Kaul that enforcement of the 1849 law would nullify subsequent legislative efforts related to abortion care.
Justice Rebecca Frank Dallet, writing for the majority, stated that the modern legislative framework is so comprehensive that it was clearly intended to replace the 19th-century ban. The previously standing law classified performing an abortion as a Class H felony, punishable by up to six years of imprisonment, and subjected individuals who performed abortions on a “quick child” to a penalty of up to 15 years. The term “quick child” refers to the stage of pregnancy when the fetus’s movements are discernible by the mother.
The court’s decision was rendered in a narrow 4-to-3 majority, affirming a lower court’s ruling. The application of the doctrine of implied repeal, which is uncommon within the legal community, was justified under the condition that the legislature had enacted comprehensive legislation encompassing every facet of the earlier statute. The ruling describes this situation as meeting such criteria, stating, “under the unique circumstances presented here, the legislature impliedly repealed [the 1849 law].”
Dissenting opinions, including that of Justice Annette Kingsland Ziegler, expressed concerns regarding the use of implied repeal. Justice Ziegler argued that it is the responsibility of the Wisconsin Legislature to revisit and potentially redefine the statutes, especially in the aftermath of the U.S. Supreme Court’s reversal of Roe v. Wade. Ziegler contended that legislative debate and action would better serve public interest than judicial intervention, cautioning against “judicial activism” and emphasizing the need for democratic processes in shaping abortion law.
This legal challenge was initiated by Attorney General Josh Kaul in 2022, following the significant change in the legal landscape instigated by the U.S. Supreme Court’s reversal of the landmark abortion rights decision in Roe v. Wade. Kaul’s suit against the District Attorney of Sheboygan County sought clarity on the enforceability of the 1849 statute in the aftermath of these federal developments.
For further details, you may access the full Wisconsin Supreme Court opinion here. More about the case can also be found on the JURIST website.