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Dane Co. judge rules that 1849 law doesn’t apply to abortion

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Dane Co. judge rules that 1849 law doesn’t apply to abortion

Dec 06, 2023 | 1:09 pm ET
By Baylor Spears
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Dane Co. judge rules that 1849 law doesn’t apply to abortion
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Drawing of female reproductive system with judge's gavel | Laura Rosina iStock / Getty Images Plus

A Dane County judge ruled that Wisconsin’s 1849 law, which effectively ended abortions in the state until recently, does not prohibit abortions. The decision is a major win for abortion rights advocates in the state, though it will likely be appealed to the Wisconsin Supreme Court. 

With the judgment on Tuesday, Dane County Judge Diane Schlipper reaffirmed her ruling from earlier this year, which said there is “no such thing as an ‘1849 Abortion Ban’” and the law applies to feticide not abortion. The earlier ruling didn’t formally end the case, but it gave Planned Parenthood Wisconsin the confidence to restart abortion services at its Milwaukee and Madison locations. 

Schlipper declined to issue an injunction preventing prosecutors from pursuing charges against abortion providers under the 1849 law, saying that the defendants in the case — Milwaukee County district attorney John Chisholm, Dane County DA Ismael Ozanne and Sheboygan County DA Joel Urmanski — have said they would abide by the decision.

Urmanski said in a statement that he will comply with the decision but intends to appeal it. An appeal will set the case on course to go to the Wisconsin Supreme Court.

“In my view, the statute plainly applies to abortions and, while it may be that the citizens of the State of Wisconsin would be better served by a different statute, I do not believe it is my job or the role of the courts to make that determination,” Urmanski said in a statement. “It is an issue for the Legislature and the Governor to resolve.”

The case was initially filed by Attorney General Josh Kaul in June 2022 shortly after the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision, which eliminated federal abortion protections enshrined in Roe v. Wade and sent decisions about the issue back to the states. 

Kaul said during a press conference on Wednesday morning that the decision was a win for women’s health but acknowledged that the decision would likely be appealed.

“This is a momentous victory, but we also recognize that this is not the end of the road,” Kaul said. “This decision can be appealed. I expect that it likely will be and so other courts will weigh in on this, but for now this is a major win for reproductive freedom in Wisconsin, and we are prepared to defend that victory.” 

Planned Parenthood of Wisconsin celebrated the decision, saying in a statement that the decision is another step towards restoring and expanding access to abortion in the state. The organization said it will restart services at its Sheboygan location as soon as possible and will continue services at its Milwaukee and Madison locations. 

“Since the overturning of Roe, Planned Parenthood of Wisconsin has maintained that [the 1849 statute] could not be enforced against abortion providers. This final ruling again confirms this,” Planned Parenthood 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.”

Anti-abortion groups, including Pro-Life Wisconsin and Right to Life Wisconsin, criticized the decision, saying it was disappointing and that Schlipper misinterpreted the statute. 

“It is our hope that this misguided ruling will be promptly appealed,” Pro-Life Wisconsin said in a statement