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Wisconsin’s convoluted history of abortion laws

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Wisconsin’s convoluted history of abortion laws

The Wisconsin Supreme Court is expected to hear next term a lawsuit seeking a clear declaration that the state constitution protects abortion rights.

July 4, 2024 8:38 AM CDT

By: Hallie Claflin / Wisconsin Watch

A U.S. Supreme Court decision to overturn Roe v. Wade in 2022 halted all access to abortion in Wisconsin due to uncertainty over a 1849 ban still on the books. But in 2023, the decision to resume abortion services in the state came swiftly after a Dane County judge ruled that the 174-year-old law does not actually ban abortion.

Abortions can now be obtained at health centers in Milwaukee, Madison and Sheboygan. But the Republican-controlled Legislature has made more recent attempts to limit abortion access, all of which have faced a certain veto by Democratic Gov. Tony Evers. 

Now, the Wisconsin Supreme Court will hear a case that asks the liberal-majority court to declare that abortion access is a right protected by the state constitution. 

Here’s a look at how Wisconsin’s abortion laws have changed since 1849: 

In 1849, a year after Wisconsin became a state, abortion was banned only after “quickening” — when a woman could feel the fetus move about halfway through pregnancy.

The prohibition was part of a bill relating to laws on homicide. The “quickening doctrine” was embraced by common law in the early United States, and termination of pregnancy was generally not seen as a crime until the fetus could be felt.

But in 1858, the word “quick” was removed from the state law, which had prohibited abortion from being administered to “any woman pregnant with a quick child.” The amendment seemingly banned abortion at all stages of pregnancy, and administering one could be considered second-degree manslaughter. The law was never taken off the books.

The change made to the law in 1858 was influenced by Dr. William Henry Brisbane, according to historians. Brisbane was a Wisconsin doctor who discouraged abortions and wanted to penalize doctors for performing them.

Another change made by the Legislature in 1858 also established penalties for those who assisted a pregnant woman in obtaining an abortion, creating two different offenses. 

In 1923, the Wisconsin Supreme Court settled the discrepancy, ruling that for someone to be charged with manslaughter under the law, the fetus must be quickened. The court stated that a “‘two months’ embryo is not a human being in the eye of the law.”

In the 1950s, the Legislature adopted a new statute that prohibited any person “other than the mother” from intentionally destroying the life of an “unborn child.” This “restatement” of the law still incorporated the 1849 provisions. It would later be questioned whether this statute applied to feticide — killing a fetus by assaulting the mother — or to consensual abortions sought out by the mother.

The law’s only exception was for life-saving “therapeutic abortions” — which is considered an archaic term. The Legislature also specified that “unborn child” referred to “a human being from the time of conception until it is born alive.”

But in 1973, Roe v. Wade federally protected the right to an abortion up until a fetus was considered viable, rendering the state law unenforceable. 

In 2015, then-Gov. Scott Walker signed a bill banning abortions after 20 weeks of pregnancy, establishing that physicians who performed the procedure beyond that point could be convicted of a felony. The law made no exceptions for rape or incest, but included an exception for medical necessity.

After the U.S. Supreme Court overturned Roe v. Wade in 2022 in the Dobbs v. Jackson Women’s Health decision, there was uncertainty as to whether the old law on the books would stand, and whether it actually banned abortions at all. For 15 months, all abortion services halted. 

Where are we now? 

In 2023, services resumed after Dane County Circuit Court Judge Diane Schlipper ruled that the pre-Civil War state law banned feticide, not abortions performed with a woman’s consent. The law reverted back to the 20-week ban that was enacted prior to the Dobbs decision. Her decision was appealed directly to the Wisconsin Supreme Court.

Earlier this year, Assembly Republicans passed a 14-week abortion ban subject to voter approval, though it did not pass the Senate. It included exceptions for rape, incest and medical necessity. Evers vowed to veto any bill that would restrict access to abortion. 

The Wisconsin Supreme Court is expected to hear next term a lawsuit filed by Planned Parenthood of Wisconsin seeking a clear declaration that the state constitution protects abortion rights. 

The court flipped to a liberal majority in 2023 after Justice Janet Protasiewicz was sworn in. On the campaign trail, she tweeted that she was “defending reproductive choice” and said she values “a woman’s freedom to make her own reproductive health care decisions.”

Forward is a look at the week in Wisconsin government and politics from the Wisconsin Watch statehouse team.

This article first appeared on Wisconsin Watch and is republished here under a Creative Commons license.

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