Abortion legal in Wisconsin as judge strikes down 19th-century law

A Wisconsin judge struck down a 19th-century law prohibiting abortions late Tuesday, making the procedure legal in the state up to 20 weeks of pregnancy.

The 1849 law restricting abortions was reinstated last year after the overturn of Roe v. Wade, but Dane County Judge Diane Schlipper interpreted the law to exclude “consensual abortions.”

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A consensual abortion is the intentional termination of pregnancy by the mother, which Schlipper wrote is distinct from “feticide,” the termination of pregnancy but without the consent of the mother, such as the death of the unborn child resulting from battery. The judge wrote the 1849 law only applies to “feticide.”

Despite the “feticide” distinction defined by Schlipper, the Wisconsin statute is titled “Abortion,” and it would send abortion-facilitating doctors to prison for up to six years on felony charges and impose fines of up to $10,000. The law also defines an unborn child as a “human being from the time of conception.”

“Although the plain meaning of the pre-Roe law prohibits elective induced abortions, the circuit court held the law does not apply to consensual abortions,” Carolyn McDonnell, litigation counsel for Americans United for Life, told the Washington Examiner. “This unfortunate decision authorizes abortion violence against preborn children, women, and families across Wisconsin.”

Democrats and other abortion-rights groups are applauding the decision and vowing to charge forward with expanding abortion access in the state.

“While we celebrate this ruling, there is more to be done,” said Michelle Velasquez, chief strategy officer for Planned Parenthood of Wisconsin. “We will continue essential work to help protect and expand reproductive freedom in Wisconsin so that everyone who needs comprehensive reproductive healthcare in our state can get the nonjudgmental and compassionate care they deserve.”

In September, Schlipper allowed Planned Parenthood of Wisconsin to resume providing abortions in Milwaukee and Madison after issuing a preliminary decision on the law. With the final decision, Velasquez said her organization would start abortions in the Sheboygan location as soon as possible.

Pro-Life Wisconsin legislative director Matt Sande called Schlipper’s reasoning an “extraordinary leap in logic,” calling for an appeal of the decision.

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Tuesday’s decision also opens the opportunity for the local district attorneys defending the law to file their appeal, and it could set up a state Supreme Court battle over abortion law, which has long been anticipated after the election of Justice Janet Protasiewicz, who solidified a 4-3 liberal majority on the court after running as openly supportive of abortion rights.

Shortly after the overturn of Roe, Gov. Tony Evers (D-WI) and Wisconsin Attorney General Josh Kaul filed a challenge to the state’s 174-year-old abortion law.