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1849 Wisconsin law doesn't ban abortions, Dane County judge rules [1]

['Alexander Shur Ashur Madison.Com', 'Alexander Shur']

Date: 2023-09

The 1849 law that was widely interpreted as a near-complete abortion ban in Wisconsin doesn’t apply to consensual abortions at all, a Dane County judge ruled Friday while allowing a lawsuit to proceed that seeks to reinstate abortion rights statewide.

“There is no such thing as an ‘1849 Abortion Ban’ in Wisconsin,” Dane County Judge Diane Schlipper said in a ruling that provided a massive but preliminary win for Wisconsin Democrats and abortion rights advocates. Instead, the law applies only to feticide, the act of killing a fetus, usually by “assaulting and battering the mother,” according to the ruling.

“A physician who performs a consensual medical abortion commits a crime only ‘after the fetus or unborn child reaches viability,’” continued Schlipper, who previously questioned whether the 174-year-old law applies to the procedure.

Schlipper’s ruling shooting down the purported ban came in an order rejecting a defendant’s motion to dismiss Democrats’ case seeking to clarify whether the 1849 feticide law, 940.04, applies to abortions.

It doesn’t appear that abortion access will be immediately restored, but Planned Parenthood of Wisconsin said they were evaluating their options “in providing abortion care as soon as we can.”

Diane Welsh, who represents the physicians who joined as plaintiffs in the case, said her clients will “now move promptly to obtain a declaratory judgment to ensure that physicians can provide health care that Wisconsin patients need.”

“I hope this ruling makes clear that no Wisconsin prosecutor should be contemplating any prosecution for abortion under 940.04,” she continued.

Heather Weininger, executive director of the anti-abortion group Wisconsin Right to Life, called the ruling “a devastating setback in our ongoing fight to protect Wisconsin’s preborn children.”

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The case for now will stay in Dane County court, but it’s likely to be appealed eventually to the Wisconsin Supreme Court, which will have a liberal majority come Aug. 1.

“This is good news and a critical step in our fight to end our state’s criminal abortion ban and restore the reproductive freedom women had” before the U.S. Supreme Court overturned Roe v. Wade, Democratic Gov. Tony Evers said.

Democratic Attorney General Josh Kaul, who filed the case, said the court’s “thorough decision makes clear that (the 1849 law) should not be interpreted to criminalize consensual abortions.”

After the Roe decision in June 2022, abortion providers in Wisconsin immediately stopped providing the service given the 1849 statute, which was widely interpreted as a law banning abortions in every case with an exception only for saving the mother’s life.

The issue became central to Democrats’ aspirations in the 2022 election, giving them a boost in a midterm year that generally favors the party not in presidential power. It also became a pillar in Wisconsin Supreme Court Justice-elect Janet Protasiewicz’s successful campaign to join the state’s highest court.

Kaul filed the lawsuit last June, seeking to have courts rule that the 174-year-old law isn’t applicable to abortions.

He originally filed the case against Republican legislative leaders, but changed the defendants to the district attorneys representing the counties that had abortion clinics before the U.S. Supreme Court struck down Roe.

The doctors who are the plaintiffs in the lawsuit alleged that one of the defendants, Sheboygan County District Attorney Joel Urmanski, threatened to prosecute physicians under the 1849 law, 940.04, for providing abortions.

“Urmanski has no authority to do this” because the law doesn’t apply to abortions, Schlipper said in her ruling Friday.

In his lawsuit, Kaul alleged the 1849 law conflicts with a 1985 statute that sought to regulate abortion during the Roe era. That later law, 940.15, prohibits abortions after fetal viability but includes an exception to protect the mother’s life and health — both provisions that were largely in place nationally after the nation’s highest court decided Roe in 1973.

1994 ruling cited

In her order rejecting Urmanski’s motion to dismiss the lawsuit, Schlipper repeatedly refers to a 1994 Wisconsin Supreme Court ruling that found the 1849 law applies only to feticide, not abortion.

“Further, any attempt to apply it to a physician performing a consensual abortion after viability would be inconsistent with the newer sec. 940.15 which limits such action and establishes penalties for it,” the 1994 ruling, State v. Black, stated.

The 1994 ruling pertained to one of the two provisions in the 1849 law that Kaul is challenging.

Two provisions of the challenged law prohibit anyone besides the mother from intentionally destroying a fetus. One prohibits the destruction of an “unborn child,” while the other prohibits the destruction of an “unborn quick child,” or a fetus that has reached viability. Violations of the prohibitions are subject to different punishments.

The provision prohibiting the killing of an unborn quick child “is not an abortion statute,” the Wisconsin Supreme Court held in 1994. “It makes no mention of an abortive type procedure. Rather, it proscribes the intentional criminal act of feticide: the intentional destruction of an unborn quick child presumably without the consent of the mother.”

In her Friday ruling, Schlipper said that despite the slight wording differences between the two provisions in the 174-year-old feticide law, “the two statutes are not only closely related, they are also effectively identical.”

She also referred to a dictionary that defines feticide as killing a fetus usually by “assaulting and battering the mother,” which she said is “different from the technical definition of abortion.”

“The meaning of ‘feticide’ is not ambiguous — Wis. Stat. § 940.04 does not prohibit a consensual medical abortion,” she said.

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