For almost 50 years, the U.S. Supreme Court decision in Roe v. Wade ensured that women retained the constitutional right to make medical decisions concerning their own bodies. Although it was overturned by 2022's Dobbs v. Jackson Women's Healthruling, Roe v. Wade still made its legacy known in a recent battle in Wisconsin.
On July 2, 2025, the Wisconsin Supreme Court abolished a state total abortion ban that had been signed into law over 175 years ago. Upholding the decision from a lower court, the 4-3 majority ruled that the substantial abortion legislation passed during the nearly five decades Roe v. Wade was in place met the high standards for implied repeal.
The ruling effectively nullifies the threats made by conservative Wisconsin prosecutors to enforce the 1849 ban, which only permitted abortions when the mother's life was in danger. Abortions in Wisconsin will remain legal until the 20th week of pregnancy.
Back When There Were Only 30 States
The overturning of Roe v. Wade put the legality of abortion under the control of each state. Some had trigger bans already in place that went into effect immediately. Others passed laws or amended the state's constitution to protect a woman's right to choose.
The 1849 law, which stated that it was illegal for anyone other than the pregnant woman to intentionally destroy the life of an unborn child, threatened up to six years in prison and a substantial fine. While still on the books, it became unenforceable with the Roe v. Wade ruling in 1973. Conservative lawmakers passed a 20-week limit on abortions in 2016, with an exception if the woman's life is in danger.
Abortion providers suspended operations in Wisconsin after the Dobbs v. Jackson ruling and the resulting uncertainty regarding the legality of abortions in the state. They resumed administering the procedure in 2023 after Wisconsin Attorney General Josh Kaul won a lower court decision against the district attorneys of three counties, in which it was ruled that the 1849 law outlawed feticide, not abortions.
They were also emboldened by the 2023 addition of Janice Protasiewicz to the court, who campaigned on a pro-choice platform, and by the continued efforts of Governor Tony Evers, who has vetoed several attempts to further restrict abortion rights.
Sheboygan County District Attorney Joel Urmanski appealed and was granted permission to skip the appellate court and have the case settled in the Wisconsin Supreme Court. This set the stage for one of the most significant court hearings in Wisconsin history.
Good Point, but We Think This One Is Better
Justices are supposed to be neutral arbiters of the law, but the ideological leanings of the bench became apparent during proceedings and in the ensuing opinion and dissents.
While the argument that the 1849 law was meant for feticide had gotten it through the circuit court, the justices in the majority found that implied repeal made a much more compelling legal justification.
They ruled that the abortion laws developed and administered during the period Roe v. Wade was in effect essentially replaced the 1849 law and rendered it moot. Their questions forced lawyers for Urmanski to admit that victims of rape and incest, regardless of their age, would be forced to carry a child to term under the provisions of the 1849 law.
The three conservative judges each provided pointed dissents. The ruling came months after a bitterly contested election for a Wisconsin Supreme Court seat that drew national attention and massive contributions. Billionaire Elon Musk spent tens of millions of dollars to support the conservative candidate, including giving two voters a million dollars each, but was thwarted as Susan Crawford easily won to maintain a liberal 4-3 majority. Crawford will replace Justice Ann Walsh Bradley, who is retiring after 30 years on the Supreme Court bench.
The fight for abortion rights in Wisconsin is likely far from over. For now, it stands as another instance of an out-of-date law being defeated, such as with the 2024 Arizona Senate's repeal of an abortion ban from 1864. Whether Wisconsin's defeated law receives new life before the U.S. Supreme Court remains to be seen.
Related Resources
- Why Was Roe v. Wade Overturned? (FindLaw's Supreme Court Insights)
- The Practical Impact of Dobbs v. Jackson Women's Health (FindLaw's Federal Courts)
- Supreme Court of Wisconsin Cases (FindLaw's Case Law)
