After the U.S. Supreme Court overturned Roe v. Wade in 2022, Republican prosecutors in Wisconsin said they intended to enforce the old law.
The Wisconsin Supreme Court invalidated a state abortion ban that was enacted in 1849 and had been dormant for five decades.
The decision on Wednesday settles an uncertainty that has surrounded abortion law in the state since June 2022, when the U.S. Supreme Court overturned Roe v. Wade, ending the constitutional right to an abortion nationwide.
It also reflects the significance of the state’s elections for Supreme Court justices, which have been hotly contested and revolved largely around abortion rights since the fall of Roe.
The court ruled 4-3 to strike down the ban, and while the justices are officially nonpartisan, the decision split them along ideological lines. A new justice who had campaigned on her support for abortion rights, Janet Protasiewicz, joined the majority.
The 1849 state law had said that anyone other than the pregnant woman “who intentionally destroys the life of an unborn child” could face six years in prison and a $10,000 fine. The only exception was for a “therapeutic abortion” to save the life of the pregnant woman.
After the U.S. Supreme Court’s decision to overturn Roe returned the regulation of abortion to the states, Gov. Tony Evers and the attorney general, Josh Kaul, both Democrats, sued to invalidate the 1849 ban. They argued that it had been effectively repealed over the years by other abortion regulations, including a law that prohibits abortion after 20 weeks of pregnancy and one that imposes a 24-hour waiting period for abortions.
