Despite 1849 law, Wisconsin abortion status expected to end up in the courts

Dozens of protesters gather in the Wisconsin state Capitol rotunda in Madison, Wis. Wednesday,...
Dozens of protesters gather in the Wisconsin state Capitol rotunda in Madison, Wis. Wednesday, June 22, 2022, in hopes of convincing Republican lawmakers to repeal the state's 173-year-old ban on abortions. The ban has been dormant since the U.S. Supreme Court handed down its landmark Roe v. Wade decision in 1973 but the court is expected to overturn that ruling any day. That would reactivate Wisconsin's ban. Democratic Gov. Tony Evers called a special legislative session Wednesday afternoon to repeal the ban but Republicans control the Legislature and were expected to gavel in and gavel out without taking any action.(Todd Richmond | AP Photo/Todd Richmond)
Published: Jun. 24, 2022 at 10:06 AM CDT|Updated: Jun. 24, 2022 at 7:17 PM CDT
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MADISON, Wis. (WMTV) - With the Supreme Court ending the Constitutional right to an abortion, the decision of whether or not abortions are legal falls to the states. In Wisconsin, that could mean returning to an 1849 law barring the procedure.

While still on the books the law had been unenforceable for nearly 50 years, since the nation’s high court issued the Roe v. Wade decision. The state law criminalizes doctors who perform abortions, making it a felony to destroy the life of an unborn child from the time of conception until its birth. It creates an exception for when two doctors agree that the mother’s life is in jeopardy but does not include carveouts for instances of rape or incest.

Currently, Wisconsin also has a law banning abortions after 20 weeks gestation.

Shortly after Politico leaked the draft decision indicating the Justices intended to overrule Roe v. Wade, NBC15 News reached out to Wisconsin Attorney General Josh Kaul to see how a potential (and now real) end of abortion rights would affect the state and the pre-Civil War law.

On May 23, the State Dept. of Justice spokesperson Gillian Drummond told NBC15 News that “there will be significant uncertainty about what the state of Wisconsin law is.” She added that the DOJ is expecting lawsuits to be filed over the issue.

In a new statement on Friday, Kaul described Roe v. Wade as a verdict that “transformed America. For two generations, it protected women’s freedom and health.”

“Today’s decision in Dobbs reverses that progress, taking us backwards almost 50 years. It leaves women less free and at greater risk of suffering harm to their health during pregnancy,” he continued.

Kaul added that his office is reviewing the decision and expects to explain how his office will respond sometime next week. He also called for elected officials to act to protect safe and legal abortions.

Earlier this week, state lawmakers convened for a special session ordered by Gov. Tony Evers to consider the abortion issue and possibly repeal the older law. The Republican-led legislature convened Wednesday and immediately gaveled out of session.

Following the decision, Planned Parenthood of Wisconsin condemned the verdict; however, in light of the decision and the current law, it has immediately suspended abortion services “until (Planned Parenthood of Wisconsin) receive(s) clarification from a court about whether the law is enforceable.”

The statement noted that the agency will continue to provide its other services, which include helping patients find safe access to abortion care where it is legal, offering travel assistance, and providing appropriate follow-up care.

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