Pregnant people in Wisconsin, like in many states, have not had access to crucial healthcare services since June 2022, when the Supreme Court overturned Roe v. Wade. That will change on Monday, after a surprise announcement by Planned Parenthood that its clinics will start offering abortions again.
Thirteen states had so-called trigger bans in place, laws already on the books that automatically went into effect as soon as the Dobbs v. Jackson ruling stripped half the population of their bodily autonomy and handed extremely personal medical decisions over to aging white men on state legislatures. More states eagerly enacted bans soon afterward, but Wisconsin was unusual among these in that its ban was archaic—genuinely, not just in spirit!
A law passed in 1849, 70 years before women even had the right to vote, made killing fetuses a crime. While there was confusion about whether that ancient artifact actually still applied, providers decided to stop offering abortions to protect doctors from overzealous prosecutions.
What changed? In July, Dane County Circuit Judge Diane Schlipper ruled that a lawsuit filed by Wisconsin Attorney General Josh Kaul challenging the ban could proceed. It was not a ruling on the validity of the law, just a denial of the other side’s motion to dismiss, and the case will still be heard in her court. However, Schlipper wrote in her ruling that she interprets the law as forbidding someone else from attacking a pregnant woman to kill her unborn fetus. It’s about assault, not abortion.
“There is no such thing as an ‘1849 Abortion Ban’ in Wisconsin,” the judge wrote.
Well, that changes everything! Why follow a law that doesn’t exist? After taking the time to make sure all the legal and practical ducks were in a row, Planned Parenthood of Wisconsin decided to start offering abortions while the court case continues.
Given Judge Schlipper’s initial ruling, Planned Parenthood of Wisconsin President Tanya Atkinson expressed confidence that they are on solid legal ground and that the 1849 law is not enforceable. The case is expected to wind up at the Wisconsin Supreme Court, which flipped to liberal control recently after Judge Janet Protasiewicz won in a landslide. Voters turned out in record numbers in an off-year spring election to get exactly this (plus the dream of unrigged voting maps, another big case on the horizon). With sore-loser Republican legislators backing off their baseless threats to impeach Protasiewicz, things are looking promising for anyone who cares about the restoration of basic rights.
So is it safe to get an abortion in Wisconsin now? Since no court has officially ruled on whether the 1849 law actually bans abortions, some risk remains—but only for providers. The law made it a felony for any person “other than the mother” to harm a fetus, so regardless of the court case’s outcome, no pregnant person is going to be prosecuted for obtaining an abortion in Wisconsin.
(featured image: Robert Nickelsberg/Getty Images)
