Wisconsin Supreme Court will decide fate of the state’s 19th-century abortion ban this week

Under lower court ruling, abortions are legal until 20 weeks of pregnancy

The Wisconsin Supreme Court will release a decision in one of its most closely watched cases on Wednesday morning. Justices will determine whether a near-total abortion ban can be in effect in the state. 

The decision comes in response to a lawsuit brought by Wisconsin’s Democratic Attorney General Josh Kaul in the days after the U.S. Supreme Court overturned Roe v. Wade, which protected a nationwide, constitutional right to abortion.

The Wisconsin lawsuit challenged a state law passed before the Civil War, which makes it a felony to provide an abortion unless it’s done to save a pregnant woman’s life.

After Roe was overturned in June 2022, providers across Wisconsin stopped performing abortions out of fear they could be prosecuted under the 19th century state law.

But elective abortions resumed in Wisconsin in late 2023 after a Dane County court ruled the 19th century law actually actually bans feticide — which is attacking a pregnant person and destroying the fetus — rather than abortions done with a pregnant person’s consent.

Now, it’s up to justices to decide whether to affirm or reject all or part of the lower court ruling.

Liberal justices have held a majority on the state’s high court since August 2023. That’s after Justice Janet Protasiewicz won an election in which she made support for abortion rights a campaign centerpiece.

During oral arguments in the case last November, several liberal justices appeared skeptical of the 19th century abortion ban, suggesting they may rule it is no longer in effect.

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