Abortion rights advocates in Wisconsin secured an incremental but important legal victory on Friday when a judge allowed the prosecution of a lawsuit seeking to restore access to abortion in the state.
The case, centered around a law passed in 1849 that was seen as banning abortion, could end up in the state Supreme Court. Liberal judges will be in the majority on that court starting next month, after winning contentious judicial elections focused primarily on abortion this year.
In 2022, after the US Supreme Court struck down the nation’s abortion law, clinics stopped providing abortions in Wisconsin, a heavily divided state where Republicans control the legislature and a Democrat holds the governorship.
Although Democrats have argued that the 1849 law should no longer be seen as prohibiting women from obtaining abortions, others, including county prosecutors, have publicly objected to it, creating an unstable legal landscape in which doctors who provide abortions could be charged with a felony.
In her preliminary ruling on Friday that allowed the case to advance, Judge Diane Schlipper indicated she did not believe doctors could be prosecuted for performing consensual abortions before a fetus reached viability. She wrote that « there is no ‘1849 abortion ban’ in Wisconsin. »
Judge Schlipper’s decision of Dane County Circuit Court gave credence to the legal arguments used by abortion rights advocates and opened a judicial path to restore access to abortion. But the immediate effect of his decision has been limited and the final say on the case is expected to come from a higher court.
« Today’s ruling is a major victory in our fight to restore reproductive freedom in Wisconsin, » Attorney General Josh Kaul, a Democrat who filed a lawsuit against the measure, said in a statement. « Although this ruling will not resolve the case and will not be the final word in this litigation, » he said, he made it clear that the law « should not be interpreted to criminalize consensual abortions. »
Friday’s ruling followed a request by Joel Urmanski, the Sheboygan County district attorney and defendant in the lawsuit, to drop the case. Mr. Urmanski, a Republican, had done it before indicated to local reporters that he would be willing to prosecute providers of abortions under the 1849 Act if a case were brought before his office.
Mr Urmanski said in an email Friday that he was in court and had not yet reviewed the sentence. He declined to comment further. Two attorneys representing him in the case did not immediately respond to emails asking for comment.
Heather Weininger, executive director of Wisconsin Right to Life, said in a statement that the ruling was « a devastating setback in our ongoing fight to protect Wisconsin’s preborn babies. »
Abortion in Wisconsin has been a defining issue in recent campaigns, with Mr. Kaul and Governor Tony Evers, a Democrat, noting their support for abortion rights during last year’s successful reelection campaigns. But because Republicans have large majorities in the legislature, due in part to gerrymander districts, there is no immediate legislative path to repeal the 1849 measure or pass abortion protections.
That shifted the focus to the judiciary, where conservatives were defending a one-seat majority on the state Supreme Court this year. In a spring election, a liberal lawyer, Janet Protasiewicz, focused her campaign on her support for abortion rights. She won, which means the court’s liberal bloc will have a slim majority next month after she’s sworn in.
If the lawsuit Judge Schlipper decided on Friday ever makes it to the Wisconsin Supreme Court, Judge Protasiewicz could be the deciding vote.