Jul 3, 2025, 9:47 AM ET

Wisconsin Supreme Court strikes down 1849 pro-life law

The Wisconsin Supreme Court overturned an 1849 state law protecting virtually all preborn children from abortion — an expected ruling that allows abortions to resume within the state.

Key Takeaways:

In 2023, a circuit court judge ruled the 1849 law cannot be enforced with regard to abortion.
Sheboygan County District Attorney Joel Urmanski filed a petition asking the Supreme Court to rule on the issue.
The Supreme Court agreed to hear the case, and announced their decision on July 2.
The justices found that newer state laws take precedence over the 1849 law.

The Details:

The court ruled against allowing the law to stand in a 4-3 split along ideological lines, with the liberal justices in the majority. The original statute reads, “Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.”

According to Dane County Circuit Judge Diane Schlipper, this is referring to feticide, not abortion, meaning it is a crime to attack a pregnant woman and cause the death of her preborn child. An abortionist, Schlipper said, would not qualify.

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After Roe v. Wade was overturned in 2022, the law had been reactivated, but with Schlipper’s ruling, abortion was permitted again through 20 weeks gestation. They will be permitted to continue now, with this Supreme Court ruling.

According to the justices, there have been so many laws and regulations put in place regarding abortion after Roe, the legislature clearly did not see the 1849 law as valid.

“We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the ‘who, what, where, when, and how’ of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion,” Justice Rebecca Dallet wrote in the majority opinion. “Accordingly, we hold that the legislature impliedly repealed [the 1849 ban] to abortion, and that [that law] therefore does not ban abortion in the State of Wisconsin.”

Why It Matters:

Because of this ruling, preborn children can be killed by abortion through 20 weeks gestation, just short of when babies have been known to survive premature birth. It has also been criticized as an instance of judicial activism, as the legislature itself has taken no action to overturn or amend the law.

Additionally, it sets a disturbing precedent, as the Wisconsin Supreme Court considers a lawsuit from Planned Parenthood to make abortion a constitutional right in the state.

Not only are the majority of justices supporters of abortion, but one of them is also a former attorney for Planned Parenthood. As a press release from a coalition of Wisconsin pro-life groups said, “[I]t is the role of Wisconsin’s elected representatives to create policy on abortion – not the courts.”

Yet this ruling indicates that judicial activism, particularly when it comes to the issue of abortion, can now be expected from the Wisconsin Supreme Court.

Commentary:

“This is a deeply disappointing decision for those of us who believe every human life has inherent value and deserves legal protection from the moment of conception. For over 175 years, Wisconsin’s 940.04 statute recognized that truth,” Heather Weininger, executive director of Wisconsin Right to Life, said in a press release.

“The court did not point to a single state statute that specifically repealed s. 940.04. To assert that a repeal is implied is to legislate from the bench. But let me be clear: Wisconsin Right to Life is not backing down,” Weininger added. “We are more committed than ever to advancing a culture of life in our state — through education, advocacy, and direct support for women facing unplanned pregnancies. Even as the courts shift, our mission stays the same: to ensure that every life, born and unborn, is valued and protected.”

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