Swing State Court Issues Pivotal Ruling On Future Of Abortion

A Wisconsin court reaffirmed a previous ruling Tuesday that a statute from 1849 has no bearing on “consensual abortions,” allowing the practice for up to 22 weeks in the state, according to court documents.

The law prohibited the “willful killing of an unborn quick child, by any injury to the mother of such child” with a limited exception for preserving the life of the mother. Following the Supreme Court’s decision to overturn Roe v. Wade in 2022, several district attorneys said that they intended to prosecute doctors performing abortions under the statute, according to Courthouse News Service.

Dane County Circuit Court Judge Diane Schlipper reaffirmed her preliminary ruling from July, which reverted the state to a previous law allowing abortions up to 20 weeks post-fertilization or 22 weeks after the last menstrual cycle, emphasizing that the statute did not apply to voluntary abortions, only feticide, according to court documents.

“This Court recently determined that there is no such thing as an ‘1849 Abortion Ban’ in Wisconsin,” Schlipper wrote, “Specifically, this Court held that Wis. Stat. § 940.04 does not apply to consensual abortions, but to feticide, consistent with the Wisconsin Supreme Court’s decision in State v. Black (1994). In light of this Court’s determination that § 940.04 does not apply to abortions.”

The lawsuit was filed by state Democratic Attorney General Josh Kaul and several doctors in late 2022, who argued that the law was only referring to “feticide” and not to abortions provided by doctors with the consent of the mother. Sheboygan County District Attorney Joel Urmanski is listed as a defendant due to comments he made days after the Dobbs decision, saying that he would prosecute doctors, who have allegedly performed abortions, under the 1849 statute, which makes performing the procedure a felony, according to ABC7, a local media outlet.

Schlipper issued a temporary ruling in September claiming “that there is no such thing as an ‘1849 Abortion Ban’ in Wisconsin.” In her decision this week, Schlipper said that she believed the doctors had proved that they were “threatened by the application of penal law” and agreed to issue a summary judgment.

The ruling is likely to be appealed by Urmanski, according to the Wisconsin State Journal.

The AG and DA’s offices did not immediately respond to the Daily Caller News Foundation’s request for comment.