Dane County Court ruled that the Wisconsin legislation from 1849 that became effective after Roe v. Wade was overturned did not restrict abortion.
The victory came as the main lawsuit challenging Wisconsin’s abortion ban, launched by Democratic Attorney General Josh Kaul, was allowed to proceed due to a procedural rule.
Governor’s Support for Repealing the Legislation
Judge Diane Schlipper said in her legal analysis that a Wisconsin Supreme Court precedent from 1994 establishes that the 1849 legislation actually established a ban on feticide.
Governor Tony Evers, who has long pushed to overturn the 1849 legislation, hailed Schlipper’s finding as a critical step toward that end shortly after it was issued.
Meanwhile, Planned Parenthood of Wisconsin hailed the verdict as a significant development in reestablishing and enlarging reproductive freedom and access in the state.
Schlipper referenced the 1994 case State v. Black, which included a man charged under legislation different from the 1849 law that makes it a crime to intentionally kill an unborn child, which the state’s high court concluded is feticide.
The nature of the deed is what sets feticide apart from abortion, the judge noted. Feticide is defined as killing a fetus, usually by assaulting and battering the mother.
She stated that the state’s feticide laws, such as the one from 1849, should not apply to the commonly accepted definition of abortion, which does not entail assault and battery.
Kaul sued three district attorneys in Wisconsin to stop them from enforcing the state’s abortion prohibition, and Schlipper heard arguments in the matter. The judge also ruled that a medical association could participate in the case.
It’s possible that this lawsuit will find its way to the state Supreme Court, and the judge’s note that her verdict on Friday is not final might delay the appeals process. In August, the court’s conservative majority will give way to a liberal one.