Liam Beran
Wisconsin Attorney General Josh Kaul.
Wisconsin Attorney General Josh Kaul: 'We now have clarity from the highest state court about what Wisconsin law provides.'
The Wisconsin Supreme Court has ruled that an 1849 state law still on the books does not ban abortion.
“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,” wrote Justice Rebecca Dallet in the majority opinion. “Accordingly, we hold that the Legislature impliedly repealed § 940.04(1)” and “therefore does not ban abortion in the state of Wisconsin.”
Attorney General Josh Kaul called the decision “a significant victory” at a Wednesday news conference.
“The arguments we made have now been vindicated,” said Kaul, who brought forward the case shortly after the U.S. Supreme Court overturned Roe v. Wade in June 2022.
“We now have clarity from the highest state court about what Wisconsin law provides,” he added.
After the 2022 U.S. Supreme Court ruling, Planned Parenthood of Wisconsin suspended abortion services in the state and women were forced to travel out of Wisconsin for abortion care. The organization resumed abortion care in 2023, when Circuit Court Judge Diane Schlipper ruled that the 1849 law only applied to feticide, or the ending of a woman’s pregnancy against her will.
The Wisconsin Supreme Court also Wednesday dismissed a related case brought by Planned Parenthood of Wisconsin that had argued that the 1849 law violated the state Constitution. It is still an open question whether Wisconsin’s constitution guarantees the right to “bodily autonomy and therefore the right to abortion care,” Michelle Velasquez, chief strategy officer of Planned Parenthood of Wisconsin, said at the news conference.
Kaul and reproductive rights advocates at the news conference warned that such restrictions as the state’s 20-week abortion ban and 24-hour waiting period are still in effect. Also on the horizon: The spending bill U.S. Senate Republicans approved Tuesday would impose a one-year ban on state Medicaid payments to Planned Parenthood and any other health care nonprofit that offers abortions and received more than $800,000 in federal funding in 2023.
Planned Parenthood clinics offer such services as annual exams, routine checkups and screenings for cancer and diabetes, among other things — only three clinics, in Madison, Milwaukee and Sheboygan, offer abortion care. Depending on what kind of insurance a patient has, the clinic seeks reimbursement for services provided from Medicaid or private insurers. (The Hyde Amendment has banned the use of Medicaid for most abortion services since 1977.)
The pending Congressional bill would cause about two-thirds of Planned Parenthood of Wisconsin’s revenue to disappear, said Velasquez.
“Annually, Planned Parenthood serves about 50,000 patients in Wisconsin at 21 locations across the state,” Velasquez said. “Undoubtedly, if about two thirds of the revenue that keeps those health centers turning every day were to disappear, that would absolutely impact the ability of Planned Parenthood" to provide services to the state, she said.
“There isn't the health care infrastructure in this state to absorb all of the patients that Planned Parenthood sees annually,” added Velasquez.
Kaul and Velasquez said it was too early to say whether any other lawsuits challenging Wisconsin’s current restrictions to abortion would be forthcoming. Kaul did say he would like to see the state Legislature “take up this issue and hear from Wisconsinites about how we can better protect reproductive freedom for the long term in Wisconsin.”
