In a closely watched ruling, the Wisconsin Supreme Court struck down the state's 175-year-old abortion ban after finding that newer legislation had effectively replaced it.

The court found in a 4-3 vote that recent abortion regulations enacted over the past five decades override the original ban from 1849, resulting in the law being unenforceable, The Christian Post reported.

The case, Josh Kaul et al. v. Joel Urmanski et al., centered on whether the 19th-century statute, which broadly prohibited abortion, could be reinstated following the 2022 reversal of Roe v. Wade by the U.S. Supreme Court.

Challenges Emerged After Fall of Roe v. Wade

The 1849 law, which banned most abortions and described the offense as “the intentional destruction of an unborn child,” had not been enforced since 1973 due to the Roe precedent. However, when the federal protection for abortion was nullified in 2022, Wisconsin officials debated whether the pre-Civil War statute should be applied once again.

Wisconsin Attorney General Josh Kaul filed a lawsuit in 2022 to block the old law's rediscovery and application. In response to the uncertainty following Roe’s overturn, many abortion providers across the state stopped offering services temporarily, citing legal risks.

Liberal Justice Rebecca Frank Dallet authored the majority opinion, concluding that more recent statutes had comprehensively created a regulatory framework for abortion that nullified the old law.

Recent Laws Undermine Original Abortion Statute

Dallet’s opinion pointed to multiple modern regulations, including a 20-week ban, mandatory ultrasounds, and a 24-hour waiting period, as examples of how lawmakers had developed more detailed and specific abortion laws over time.

These regulations, according to Dallet, did not merely add to the 1849 law but formed a separate and complete legal structure dealing with abortion. She argued this indicated that lawmakers intended to replace older restrictions with a modern set of guidelines.

“A statute may be repealed either expressly, by enacting a subsequent statute that repeals the earlier one,” Dallet wrote, “or by implication.” She added that the existing regulations dealt so thoroughly with abortion access and oversight that they should be interpreted as a substitute for the original ban.

Dissenting Justices Warn of Judicial Overreach

In a strongly worded dissent, conservative Justice Annette Kingsland Ziegler criticized the ruling, claiming that the court had stepped beyond its judicial boundaries and encroached on legislative powers.

Ziegler described the majority’s approach as “a jaw-dropping exercise of judicial will,” alleging that their decision reshaped the law based on personal views rather than legal standards established by procedure.

She warned that the judgment created a dangerous precedent, accusing the court's liberal bloc of effectively “inventing legal theories on the fly” to undo a law properly passed by elected lawmakers.

Control of Abortion Law Still Up in the Air

Although the court invalidated the 1849 ban, Wisconsin's other existing abortion restrictions—including the 20-week ban and procedural mandates—remain intact, making the landscape highly regulated despite the recent ruling.

Ziegler stressed that abortion legislation should remain the purview of the state legislature and that judicial intervention undermines the separation of powers. “Our court has no business usurping the role of the legislature,” she wrote.

In her opinion, Ziegler expressed concern that the ruling invites courts to dictate policy instead of interpreting law. “Abortion policy is for the legislature to decide,” she concluded.

State’s Legal Framework Now Faces New Scrutiny

The court's decision does not change the state’s current regulatory environment surrounding abortion access, but it signals a judicial stance that recent laws establish a prevailing framework.

This ruling is expected to be one step in an ongoing policy debate. Supporters and opponents of abortion rights alike view the decision as a precursor to future legal, legislative, and political battles over reproductive health access in the state.

Although the ruling marks a historic legal shift, both sides agree it leaves numerous questions unresolved, particularly about how future laws might be interpreted or challenged in a post-Roe landscape.