Wisconsin’s 1849 abortion law takes center stage after Arizona ban goes into effect
A Dane County judge has ruled that an 1849 Wisconsin law does not ban abortion and cannot be enforced. Democrats warn that Republicans can change that.
On April 9, Arizona’s conservative Supreme Court ruled that a law banning abortion passed in 1864 is enforceable. This Arizona law resurfaced an 1849 Wisconsin law that was interpreted as banning abortion.
The Arizona Supreme Court — whose seven members were all appointed by Republican governors — ruled that because the U.S. Supreme Court overturned the constitutional right to abortion in its 2022 decision in Dobbs v. Jackson Women’s Health Organization, the Arizona 1849 ban can go back into effect. The ruling temporarily suspended enforcement of the law, which passed 48 years before Arizona became a state, for 14 days to give the parties time to pursue further action on issues raised in trial court.
“Absent the federal constitutional abortion right… there is no provision in federal or state law prohibiting § 13-3603’s operation,” the court ruled. “Accordingly, § 13-3603 is now enforceable.”
The 1849 law criminalizes anyone who provides abortion care, including anyone who supplies abortion medication or gives a pregnant woman “any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life.” The crime is punishable by 2-3 years behind bars.
The Arizona law has been compared to the Wisconsin law passed in 1849, which says, “Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.” A Class H felony is punishable by a fine of up to $10,000 and up to six years in prison.
The Wisconsin law is currently unenforceable after a Dane County judge ruled in December that the law pertained to infanticide and not to abortion. The Sheboygan County district attorney appealed that ruling to the Wisconsin Supreme Court. The Supreme Court has not yet said whether it will hear the appeal. However, if it did, the 4-3 liberal-majority court would likely side with the lower court.
The Arizona Supreme Court decision putting the 160-year-old abortion ban into effect came one day after former President Donald Trump took credit for ending Roe and said he believes each state should have the right to decide its abortion laws.
“I was proudly the person responsible for the ending of something that all legal scholars, both sides, wanted and, in fact, demanded be ended: Roe v. Wade. They wanted it ended,” Trump said in a video statement posted on Truth Social on Monday, the Hill reported.
Trump added: “Many states will be different. Many will have a different number of weeks or some will have more conservative than others, and that’s what they will be.”
Wisconsin Democrats are warning that if Republicans win full control of the Legislature, or if the majority on the state Supreme Court flips, the right to abortion in the state could face the same fate as it has in Arizona.
“Wisconsin, where an 1849 criminal abortion ban took effect immediately after the Dobbs decision, has since reversed the restrictions in Dane County Circuit Court, and is now awaiting a likely appeal to the Wisconsin Supreme Court, could still suffer the same fate as Arizona,” Dr. Kristin Lyerly, an obstetrician and gynecologist and a Democratic candidate for Wisconsin’s 8th Congressional District, told the Wisconsin Independent. “Here, too, it’s in the hands of the courts.”
Lyerly added that Trump’s claim that he wants to return abortion decisions to the states is a “desperate attempt to appease voters on an issue where the MAGA extreme GOP stance is wildly out of step with what Americans in every state want.”
“It comes down to a very small number of people in a court whose composition changes almost every year,” Democratic Party of Wisconsin chairman Ben Wikler told the Milwaukee Journal Sentinel. “I think the key thing to underscore is how precarious access to abortion and reproductive health care is.”
President Joe Biden, for his part, reacted to the Arizona ruling by reaffirming his commitment to restoring the right to abortion nationwide that had been in place before the Supreme Court overturned Roe. He placed the blame for the Arizona ban going back into effect squarely on the backs of Republicans.
“This cruel ban was first enacted in 1864 — more than 150 years ago, before Arizona was even a state and well before women had secured the right to vote. This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women’s freedom,” Biden said in a statement.
