In ‘Power Grab,’ WI Supreme Court Voids Lifesaving Abortion Ban

In a decision deemed judicial activism and a “power grab” by pro-life and judicial experts, the leftist-controlled Wisconsin Supreme Court ruled on Wednesday to nullify the Badger State’s longstanding law barring abortion.

In a narrow 4 to 3 vote, the court determined that “the legislature impliedly repealed” an 1849 law that made abortion a felony.

The 19th-century statute criminalized the act of abortion except in cases when it was required to save a mother’s life. Under the state Supreme Court’s new interpretation of Wisconsin law, however, abortion is allowed until at least halfway through a woman’s pregnancy, around 20 weeks gestation.

In her concurrence, which included a section titled “WE HONOR THEIR STORIES AND THEIR LIVES,” Chief Justice Jill Karofsky repeated the leftist lie that women, such as Georgia woman Amber Thurman, lost their lives “because they lived in states that severely restrict abortion care.”

Even though the women’s deaths came at the hands of complications due to the popular, yet dangerous abortion drug regimen and medical malpractice, Karofsky falsely claimed against all evidence that states with pro-life protections have “unclear exceptions only for the life and health of the mother.”

“This forced paralysis has had real, deadly consequences,” she wrote.

In her dissent, Justice Annette Ziegler scolded the majority and the concurring chief justice for prioritizing the “profoundly personal way in which we might determine our respective positions on abortion” over “how a court is required to interpret the law.”

“It is the court’s duty to adhere to the law whether we ‘like’ the answer or not,” she wrote.

The court’s opinion, she continued, “is a jaw-dropping exercise of judicial will, placing personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law.”

“In this dangerous departure from our constitutional design, four members of the court make up and apply their own version of implied repeal, failing to hew to any semblance of traditional judicial decision-making or jurisprudence,” Ziegler concluded.

Pro-life advocates and judicial experts agreed with Ziegler’s analysis.

“This decision is nothing short of a judicial power grab. The Wisconsin Supreme Court has taken it upon itself to erase a law that elected representatives deliberately preserved for over 175 years — even while Roe v. Wade rendered it unenforceable,” Executive Vice President and General Counsel at Thomas More Society Andrew Bath wrote in a statement. “The majority abandoned sound legal reasoning in favor of political activism, mocking the very concept of judicial restraint. This is a betrayal of the rule of law and a devastating blow to the state’s longstanding commitment to protecting the most vulnerable.”

SBA Pro-Life America’s Political Communications Director Kelsey Pritchard also warned that countless unborn children’s lives are now at risk due to the “activist ruling from the Wisconsin Supreme Court.”

“Babies with heartbeats and who can feel pain have no legal protection in the state of Wisconsin where abortion through the fifth month is now the law of the land as dictated by four justices on the court,” Pritchard wrote.

The court claimed that it was merely “giving effect to 50 years of worth of laws” regarding unborn life, thus invalidating the state’s historic 1849 law protecting babies from abortion. Bath, however, concluded that Wisconsin’s “later legal protections for unborn life — such as bans after viability or on partial birth abortion — work in harmony with it.”

“They were enacted under the constraints of Roe, not to replace the older law but to regulate abortion to the extent permitted under the Roe framework until the day that Roe was finally overruled,” he explained. “Actual attempts in the legislature to repeal it were always beaten back so as to preserve the law in anticipation of the day Roe would fall.” 

In his analysis, Bath claimed the court’s majority relied far too heavily on “implied repeal” it attempted to justify by weaving together a “patchwork of later laws.”

“That’s not statutory interpretation; it’s legislating from the bench — an egregious violation of our constitutional system of separation of powers,” Bath continued. “This flies in the face of the fact that the legislature has amended — rather than repealed — the law several times over the years, including as recently as 2011. The dissents rightly expose the liberal majority’s brazen attempt to impose an ideological agenda through the courts.”

Jordan Boyd is a staff writer at The Federalist and producer of The Federalist Radio Hour. Her work has also been featured in The Daily Wire, Fox News, and RealClearPolitics. Jordan graduated from Baylor University where she majored in political science and minored in journalism. Follow her on X @jordanboydtx.