### Wisconsin Supreme Court Considers Enforceability of Pre-Civil War Abortion Ban

The Wisconsin Supreme Court is set to deliberate on Monday about the status of a 1849 abortion ban that predates the Civil War. This law, which legislators passed more than a decade before the conflict, is now under scrutiny to determine if it can be enforced in the modern legal context.

With the court's liberal justices holding a majority and indicating support for abortion rights, abortion-rights advocates are optimistic about their chances. Recently elected Justice Janet Protasiewicz openly expressed her support for abortion rights during her campaign, breaking away from the tradition of judicial candidates avoiding personal opinions to maintain an image of impartiality.

Wisconsin's legislative history on abortion is deeply rooted. The initial 1849 law labeled anyone performing an abortion, except to save the mother's life, as guilty of manslaughter. Later statutes criminalized a woman’s attempts to induce her own miscarriage. The law underwent further revisions in the 1950s to classify the intentional killing of an unborn child or harm to the mother, with the intent of child destruction, as a felony. However, exceptions were made for doctors acting in consultation with two other physicians when the mother's life was at risk.

The legality of this old ban was effectively nullified by the 1973 Roe v. Wade ruling of the U.S. Supreme Court, which legalized abortion nationwide. However, the Wisconsin legislature never formally repealed the 1849 ban. Following the U.S. Supreme Court's decision to overturn Roe in 2021, some conservatives maintain that the state’s historic ban should once again be enforceable.

In contrast, Democratic Attorney General Josh Kaul has challenged the 1849 law, contending that a 1985 Wisconsin statute permitting abortions before a fetus can survive outside the womb should take precedence. Viability with medical assistance typically begins at 21 weeks of gestation.

Sheboygan County District Attorney Joel Urmanski, a Republican, has argued that the 1849 ban remains valid, as it was not formally repealed and can coexist with the 1985 law. Urmanski's stance is that the newer law does not legalize abortion outright but instead provides conditions under which it is permissible.

A significant turn in this debate occurred last year when Dane County Circuit Judge Diane Schlipper ruled that the old ban specifically outlaws feticide—defined as the killing of a fetus without the mother's consent—but does not prohibit consensual abortions. Following this ruling, Planned Parenthood resumed abortion services in the state after halting them when Roe was overturned.

Urmaniski sought to have Schlipper's ruling overturned by the Wisconsin Supreme Court, bypassing lower appellate courts. The Supreme Court agreed to hear the case in July. Separately, Planned Parenthood of Wisconsin petitioned the court to rule on whether there is a constitutional right to abortion in the state, and the court also agreed in July to take on this case, though oral arguments have not yet been scheduled.

With significant political and legal implications at stake, the ruling from the Wisconsin Supreme Court is anticipated to take several weeks, highlighting the ongoing contentious nature of abortion laws in the state.