MADISON, Wis. — The Wisconsin Supreme Court on Tuesday decided to hear two challenges to a 175-year-old law that conservatives say bans abortion without the cases being heard by lower courts.
Abortion advocates have a strong chance of winning in both cases, given the Supreme Court’s liberal bias and comments one liberal justice made during the campaign about her support for abortion rights.
Wisconsin lawmakers passed laws in 1849 that were broadly interpreted as banning abortion in all cases except to save the mother’s life. The U.S. Supreme Court’s landmark 1973 ruling in Roe v. Wade legalizing abortion struck down the laws, but lawmakers never repealed them. The high court’s 2022 decision to overturn Roe v. Wade reenforced them.
Democratic Attorney General Josh Kaul has filed a lawsuit challenging the statutes in 2022arguing that they were too old to enforce and that a 1985 law allowing abortions before a fetus can survive outside the womb supersedes it. A Dane County judge ruled last year that the statutes prohibit attacking a woman in an attempt to kill her unborn baby, but do not prohibit abortions. The decision gave Planned Parenthood the courage to resume offering abortions in Wisconsin after it halted the procedures when the U.S. Supreme Court overturned Roe v. Wade.
Sheboygan County District Attorney Joel Urmanski, a Republican, asked the state Supreme Court in February undo the verdict without letting an appeal go through the state’s lower appellate courts. He argued that the ruling will have a statewide impact and guide lawmakers and that the case will ultimately end up in the Supreme Court anyway.
A few days after Urmanski filed his request, Planned Parenthood of Wisconsin Urmanski charged and asked the Supreme Court to take it up immediately. The organization is seeking a ruling that the The laws of 1849 are unconstitutional, arguing that the state constitution’s declaration that people have the right to life, liberty, and the pursuit of happiness means that women have the right to control their own bodies. In effect, the court is being asked to establish a constitutional right to abortion.
The court issued orders indicating that the justices voted unanimously to hear Urmanski’s appeal and voted 4-3 to hear the Planned Parenthood case. The court’s four liberal justices voted to hear that case, and its three conservative justices voted against hearing it.
Urmanski’s attorneys, Andrew Phillips and Matthew Thome, did not immediately respond to an email seeking comment.
It seems nearly impossible to convince the court’s liberal majority to uphold the statute. Liberal Justice Janet Protasiewicz went so far as to openly declare her support for abortion rights during her campaign, a big step for a judicial candidate. Typically, such candidates refrain from discussing their personal views out of concern that they might appear biased to the court.
The conservative justices accused the liberal majority in their Planned Parenthood dissent of engaging in politics.
“The signal to the watching public is that when certain policy issues strike the right chord, this court will follow the party line, not the law,” Hagedorn wrote.
Liberal Justice Jill Karofsky countered in a concurring vote that the state Supreme Court is supposed to decide important state constitutional issues.
“Regardless of one’s views on the morality, legality, or constitutionality of abortion, it is undeniable that abortion regulation is an issue of immense personal and practical significance to many Wisconsinites,” Karofsky wrote.
Michelle Velasquez, Chief Strategy Officer at Planned Parenthood of Wisconsin, said in a statement that the organization is grateful the court agreed to hear the case and that Wisconsin residents should know whether abortion is legal in the state.
Wisconsin Watch, a media outlet, obtained a leaked draft of the order last week that took the case, prompting Chief Justice Annette Ziegler to call for an investigation.
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This story has been updated to correct the day of the week in the first sentence to Tuesday, not Monday.