Wisconsin judge strikes down 174-year-old state law used to ban abortion

Dane County Wis. Judge Diane Schlipper makes remarks during a case being argued by the State of Wisconsin which challenges a 174-year-old feticide law at the Dane County Courthouse in Madison, Wis. Thursday, May 4, 2023. Schlipper refused Friday, July 7, 2023, to toss out a lawsuit challenging Wisconsin's 174-year-old abortion ban, keeping the case inching toward the state Supreme Court in a state where debate over abortion rights has taken center stage. (John Hart/Wisconsin State Journal via AP, File)

On Tuesday, Dane County Circuit Court Judge Diane Schlipper reaffirmed her prior ruling that a Wisconsin law dating to 1849 does not ban abortion. 

“This Court held that Wis. Stat. § 940.04 does not apply to consensual abortions, but to feticide,” Schlipper wrote in her 14-page opinion in Kaul v. Urmanski. She added that her ruling was based on a state Supreme Court decision that found that feticide, the crime of killing an unborn fetus, is a nonconsensual act in which a pregnant person is beaten to the point that they lose a pregnancy. 

The Dec. 5 ruling means that abortion in Wisconsin is legal up to 20 weeks of pregnancy, subject to a mandatory ultrasound for anyone seeking an abortion, returning the procedure in the state to its legal status before the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization reversed Roe v. Wade.

There was always this little seed of doubt that was sitting in the back of my mind saying, You can’t let your foot off the gas. And we still can’t let our foot off the gas,” Dr. Kristin Lyerly, a Green Bay, Wisconsin-based OB-GYN, told the American Independent. “This is really important, but there’s so much more that needs to be done in order to make sure that people get standard fundamental reproductive health care in this state.” 

Michelle Velasquez, Planned Parenthood of Wisconsin’s chief strategy officer, told the American Independent in an email that the organization was thrilled with the ruling. 

“While we resumed services in September, we know that this ruling is meaningful for providers around the state, who can now offer their patients the full scope of reproductive health care without the fear of prosecution. We will continue to work to protect and expand access to abortion care to ensure Wisconsinites can obtain the nonjudgmental and compassionate reproductive and sexual health care they deserve,” Velasquez said.  

Wisconsin Gov. Tony Evers and Attorney General Josh Kaul had filed a lawsuit challenging the state’s 174-year-old law just four days after Roe’s reversal on June 24, 2022. 

In July 2023, Schlipper ruled that the lawsuit could proceed. Her ruling stated that the mid-19th century law barring the termination of a pregnancy applied only to an attack on a pregnant person for the purpose of killing a fetus. 

The July ruling led Planned Parenthood of Wisconsin to resume abortion care in its Madison and Milwaukee clinics. According to the Associated Press, Planned Parenthood of Wisconsin said in a statement Tuesday that it will resume abortion care at its Sheboygan clinic “as soon as possible.”

“Freedom wins. Equality wins. Women’s health wins,” Kaul said in a statement Tuesday. “This ruling is a momentous victory and we are prepared to defend it — and reproductive freedom in Wisconsin.”

“The most important thing that people need to know is abortion is legal in Wisconsin,” Lyerly said. 

If the ruling is appealed, it could end up with the state Supreme Court, which currently has a 4-3 liberal majority. In August, Janet Protasiewicz was sworn in as the ninth justice of the Wisconsin Supreme Court. In October, the state’s Republican-majority Legislature threatened to impeach her because she had expressed views on abortion and gerrymandered legislative maps during her campaign for the seat on the court. 

“There’s so much to celebrate right now, and continuing on the momentum of Protasiewicz’s win and the Supreme Court taking up the redistricting case, I just feel like the real opportunity to reset what the democratic process looks like and ensuring that people’s voices are actually being lifted up,” Democratic Wisconsin Sen. Melissa Agard told the American Independent. “Yeah, it was a ‘Woo-hoo!’ moment.”