A Dane County judge handed a victory to abortion rights supporters on Tuesday when she ruled that a 19th century Wisconsin law does not ban abortions.
Circuit Court Judge Diane Schlipper’s ruling came in response to a lawsuit filed by Wisconsin’s Democratic Attorney General Josh Kaul. Kaul sought to block prosecutions under the law, which has been widely interpreted as banning abortions except to save the life of the pregnant woman.
The ruling could eventually be appealed to the Wisconsin Supreme Court, a body that has recently come under liberal control.
In Tuesday’s order granting the declaratory judgment, Schlipper sided with doctors who intervened in the case, arguing that they were being harmed by confusion over the legality of abortion in Wisconsin.
However, Schlipper denied the intervenors’ request for a preliminary injunction that would have barred enforcement of Wisconsin’s 1849 law. In her ruling on Tuesday, Schlipper wrote that this was unnecessary because the three prosecutors named as defendants in Kaul’s lawsuit had agreed not to prosecute people who perform abortions with a pregnant woman’s consent.
In a statement on Tuesday, Kaul celebrated Schlipper’s decision.
“Freedom wins. Equality wins. Women’s health wins,” his statement read. “This ruling is a momentous victory, and we are prepared to defend it – and reproductive freedom in Wisconsin.”
The anti-abortion group Wisconsin Right to Life said in a written statement that “pro-choice activists on the court” were “putting lives on the line”.
“The ruling is truly disappointing for all Wisconsinites,” said Heather Weininger, executive director of Wisconsin Right to Life.
In July, Schlipper allowed the case to proceed when she denied a motion by Republican Sheboygan County District Attorney Joel Urmanksi to dismiss the case. In that earlier ruling, Schlipper foreshadowed Tuesday’s decision by suggesting that the 19th-century law actually bans feticide – when someone attacks a pregnant woman and destroys her fetus – rather than abortions performed with a pregnant woman’s consent.
Prior to the U.S. Supreme Court decision that overturned Roe v. Wade in June last year, elective abortions were offered in only three Wisconsin counties – Milwaukee, Dane and Sheboygan. But providers stopped offering those services because of the Supreme Court’s decision.
Planned Parenthood of Wisconsin decided to resume elective abortion services in September at clinics in Milwaukee and Dane counties, citing Schlipper’s July ruling as legal backing. Leaders of the group said Tuesday they’re working to resume those services in Sheboygan County “as soon as possible.”
“Since Roe was overturned, Planned Parenthood of Wisconsin has maintained that Wis. Stat. 940.04 could not be enforced against abortion providers,” Planned Parenthood of Wisconsin Chief Strategy Officer Michelle Velasquez said in a statement. “This final ruling reaffirms that. We are grateful to Attorney General Kaul and Governor Evers for their leadership and efforts to protect reproductive freedom in Wisconsin.”
Planned Parenthood leaders have said they will continue to comply with other restrictions on abortion in Wisconsin, including a ban on all abortions after 20 weeks and a mandatory ultrasound law.