Wisconsin Supreme Court Strikes Down 1849 Abortion Law

Listen closely, conservatives: This is why non-regular, non-presidential, non-midterm elections count.

On Wednesday, the state of Wisconsin’s Supreme Court ruled that a 176-year-old law banning abortion was no longer valid. The vote was 4-3 to overturn the 1849 law, which had been rendered moot by Roe v. Wade.

According to The New York Times, the case was brought before the court thanks to Republican prosecutors in the state — which went for Donald Trump in 2016 and 2024 and has GOP majorities in both houses, albeit with a Democratic governor — who promised to enforce the old law.

The deciding vote was Janet Protasiewicz, who was elected in a 2023 off-year election.

While the judges are officially nonpartisan, they’re thus in name only; Protasiewicz ran for the seat vacated by retiring Justice Patience Roggensack and won an April 2023 election by campaigning on abortion and LGBT rights. The race for the seat was preposterously expensive, with over $42 million spent, most of it on the side of Protasiewicz.

This was subsequently topped by a whopping $100 million on a 2025 race for an open seat that ensured the court would remain 4-3 left-leaning, despite Elon Musk and other conservative donors flooding money into the state at the same time that left wing groups did. As Fox News noted, the case was the impetus for what ended up being the most expensive judicial election in U.S. history. (The justice who was elected this spring, Susan Crawford, will only be seated on Aug. 1.)

The law made anyone other than the pregnant mother “who intentionally destroys the life of an unborn child” liable for up to six years in jail and a $10,000 fine.

“After the U.S. Supreme Court’s decision to overturn Roe returned the regulation of abortion to the states, Gov. Tony Evers and the attorney general, Josh Kaul, both Democrats, sued to invalidate the 1849 ban,” the Times reported.

“They argued that it had been effectively repealed over the years by other abortion regulations, including a law that prohibits abortion after 20 weeks of pregnancy and one that imposes a 24-hour waiting period for abortions.”

The judges agreed, and in a Wednesday decision, the law was struck down.

“Comprehensive legislation enacted over the last 50 years regulating in detail the ‘who, what, where, when, and how’ of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion,” Justice Rebecca Dallet wrote in the decision for the case that overturned the law, known as Kaul v. Urmanski.

While Dallet noted that Wisconsin Supreme Court precedent had typically set a high standard for so-called “implied repeal,” they found that due to state law on abortion being revised in the wake of Roe v. Wade, the Wisconsin Legislature had met that bar.

“Indeed, these statutes specify, often in extraordinary detail, the answer to nearly every conceivable question about abortion,” Dallet wrote.

“Who may perform abortions? Only doctors. Where may abortions be performed? Within 30 miles of a hospital where the doctor has admitting privileges. When may abortions be performed? Prior to viability or 20 weeks of pregnancy except when necessary to preserve the life or health of the mother or in a medical emergency.”

Wisconsin Republicans and Democrats lamented and rejoiced over the decision, respectively.

“The Wisconsin Supreme Court’s role is to follow the Constitution, not to make law,” said state Republican Party Chairman Brian Schimming in a statement. “This issue should be resolved in the legislature and by voters, not by far-left justices parading as legislators.”

Meanwhile, Wisconsin Gov. Tony Evers, a Democrat, said, “Today is a win for women and families, a win for health care professionals who want to provide medically accurate care to their patients, and a win for basic freedoms in Wisconsin, but our work is not over.

“I will continue to fight any effort that takes away Wisconsinites’ reproductive freedom or makes reproductive health care, whether birth control, abortion, I.V.F., or fertility treatments, any less accessible in Wisconsin than it is today,” he continued. “That is a promise.”

Look, I’m of the opinion that this decision is as bogus as it sounds, and the very idea that there’s a high bar for “implied repeal” but that the Legislature met it because it passed laws regulating abortion when it was forced upon them — while still keeping the 1849 law on the books — is absurd. But here’s the thing: There was an easy way to stop this. Republicans didn’t turn out in high enough numbers either time in a state where the GOP now has a better-than-average chance of winning.

If Protasiewicz hadn’t been elected, she wouldn’t have cast the deciding vote. If Crawford weren’t about to be seated, the court likely would be loath to issue a sweeping decision that the court might backtrack on in the not-too-distant future. In both cases, in winnable elections, conservatives dropped the ball.

To quote a not-exactly-missed former president, elections have consequences. In this case, the consequences will be borne by the unborn. It’s something to remember in a state where a “vibe shift” is underway but where Democrats can still count on the fanatics to come out for off-cycle races.

Yes, as an American patriot, you need to show up whenever you can at the ballot box. If you don’t, all the complaints in the world won’t reverse the fallout from the outcome.

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