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In victory for abortion rights, Dane County judge rules 19th century law does not ban abortions in Wisconsin

The case could eventually head to the Wisconsin Supreme Court

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A judge in a black robe sits at the front of a courtroom.
Circuit Court Judge Diane Schlipper hears arguments from attorneys about whether to dismiss a lawsuit over Wisconsin’s abortion ban Thursday, May 4, 2023, at the Dane County Courthouse in Madison, Wis. Angela Major/WPR

A Dane County judge handed a victory to supporters of abortion rights Tuesday, when she ruled that a 19th century Wisconsin law does not prohibit abortions.

The order from Circuit Court Judge Diane Schlipper comes in response to a lawsuit from Wisconsin’s Democratic Attorney General Josh Kaul. Kaul sought to block prosecutions under the law, which had been widely interpreted as banning abortions unless they were done to save a pregnant person’s life.

The ruling could eventually be appealed to Wisconsin’s Supreme Court, a body that recently flipped to liberal control.

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In Tuesday’s order granting declaratory judgment, Schlipper sided with doctors who intervened in the case by arguing they were harmed by confusion over the legality of abortions in Wisconsin.

Schlipper declined, however, to grant a request by the intervenors for an injunction which would have barred enforcement of Wisconsin’s 1849 law. In her Tuesday ruling, Schlipper wrote that doing so would be unnecessary because the three prosecutors named as defendants in Kaul’s suit have agreed not to prosecute people who provide abortions with a pregnant person’s consent.

In a statement Tuesday, Kaul celebrated Schlipper’s decision.

“Freedom wins. Equality wins. Women’s health wins,” his statement said. “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 issued a written statement saying “pro-choice activists on the court” were “putting lives on the line.”

“The ruling is truly disappointing for all Wisconsinites,” said Wisconsin Right to Life Executive Director Heather Weininger.

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In July, Schlipper allowed the case to proceed when she denied a motion from Sheboygan County’s Republican District Attorney Joel Urmanksi to have the case dismissed. In that earlier ruling, Schlipper foreshadowed Tuesday’s decision by opining that the 19th century law actually bans feticide — when someone attacks a pregnant person and destroys their fetus — rather than abortions done with a pregnant person’s consent.

Prior to the U.S. Supreme Court decision that overturned Roe v. Wade in June of last year, elective abortions were offered in only three Wisconsin counties — Milwaukee, Dane and Sheboygan. But providers stopped offering those services because of the high court’s decision.

Planned Parenthood of Wisconsin chose to restart elective abortion services in September at clinics in Milwaukee and Dane Counties, citing Schlipper’s July ruling as legal backing. The group’s leaders said Tuesday they’re working to resume those services in Sheboygan County “as soon as possible.”

“Since the overturning of Roe, Planned Parenthood of Wisconsin has maintained that Wis. Stat. 940.04 could not be enforced against abortion providers,” Planned Parenthood of Wisconsin’s Chief Strategy Officer Michelle Velasquez said in a statement. “This final ruling again confirms this. 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 continue to follow other regulations on abortions in Wisconsin, including a ban on all abortions after 20 weeks and a mandatory ultrasound law.

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