Wisconsin judge declares 1849 law does not apply to consensual abortions

(CN) — A Wisconsin judge Tuesday once again declared that an 1849 state law does not apply to consensual abortions.

Dane County Circuit Court Judge Diane Schlipper ruled against a district attorney who said he would prosecute abortions under the mid-19th century law following the U.S. Supreme Court’s reversal of Roe v. Wade.

In the wake of that decision, several doctors, Wisconsin Attorney General Josh Kaul, and state agencies sued in June 2022 to toss the nearly two century-old-law, which they described as a broad ban on abortion that only provides an exception in cases where the procedure is necessary to save a mother’s life. 

The plaintiffs said the old law had been superseded by subsequent statutes and also noted in their complaint that the Wisconsin Supreme Court in its 1994 decision State v. Black held that the 1849 statute did not pertain to abortion, but rather to the “intentional criminal act of feticide.”

The lawsuit initially named Republican leaders of the Wisconsin Legislature as defendants, but they were ultimately replaced by the district attorneys of Sheboygan, Dane and Milwaukee counties, who asked Schlipper to dismiss the case. In July 2023, she refused to do so, and also determined that “there is no such thing as an ‘1849 abortion ban’ in Wisconsin.” 

She said in that ruling the meaning of the state high court’s 1994 decision is clear: the 1849 law only deals with feticide, and that term’s legal definition is not synonymous with abortion. 

The plaintiffs then sought a declaration the 1849 statute does not apply to consensual abortions and asked for an injunction prohibiting prosecution for consensual abortions under the law. 

Defendant Joel Urmanski, the district attorney for Sheboygan County who has publicly interpreted the 1849 law as prohibiting all abortions from conception until birth, except to save the life of the mother, asked the judge to reconsider her prior decisions in the case and her determination that the law only prohibits feticide. 

On Tuesday, Schlipper reaffirmed her interpretation of the statute.

“In sum, Urmanski fails to make any ‘heightened showing of wholesale disregard, misapplication, or failure to recognize controlling precedent,’” Schlipper wrote in her 14-page ruling. 

The judge also granted summary judgment to plaintiff Dr. Kristin Lyerly, a obstetrician-gynecologist who performed abortions in Sheboygan County and other parts of the state until the end of June 2022. When Lyerly learned of Urmanski’s intention to prosecute abortion providers under the 1849 law, she temporarily relocated her practice outside of the state. 

Given Urmanski’s concession that Lyerly presented a “justiciable controversy … this court need not consider whether the state agencies or all three of the doctors present a justiciable claim — one doctor is enough,” Schlipper wrote. 

Although the judge granted declaratory judgment that the disputed statute does not prohibit abortions, she declined to grant the doctors’ request for an injunction, writing that each of the three defendants, including Urmanski, has said they will abide by the court’s declaration. 

Heather Weininger, executive director of the anti-abortion group Wisconsin Right to Life, described the ruling as disappointing. 

“A law that was enforced before the flawed decision of Roe is now one that pro-choice activists on the court are willing to use as a tool for their cause.”

Planned Parenthood of Wisconsin Chief Strategy Officer Michelle Velasquez, said in a statement Tuesday that her organization would continue to provide abortions in Milwaukee and Madison, and would resume abortion services in Sheboygan as soon as possible.”

“While we celebrate this ruling, there is more to be done,” she said. “We will continue essential work to help protect and expand reproductive freedom in Wisconsin so that everyone who needs comprehensive reproductive health care in our state can get the nonjudgmental and compassionate care they deserve.”

Velasquez praised Kaul and Governor Tony Evers, both Democrats, for their efforts to protect reproductive rights in the state.

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

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