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The entrance to the Wisconsin Supreme Court chambers is seen inside the state Capitol in Madison, Wisconsin.<\/span>Todd Richmond\/AP<\/span><\/p>\n<\/div>\n When Wisconsin voters flipped<\/span> the ideological balance of the state\u2019s supreme court in 2023, abortion was very much on their minds. Specifically, abortion opponents were arguing that with the demise of Roe v Wade<\/em> the year before, the state\u2019s 1849 near-total abortion ban\u2014invalidated by Roe<\/em> but never overturned by lawmakers, so still technically on the books\u2014should go into effect. The Wisconsin Supreme Court would be the ultimate decider\u2014and thanks to the retirement of a conservative justice, the court was evenly split along partisan lines, 3 to 3.<\/p>\n The race for the open seat between Democratic-aligned circuit judge Janet Protasiewicz and conservative former Supreme Court justice Daniel Kelly was hard-fought and<\/a>, with over $45 million spent, the most expensive judicial race in US history to that point. The final vote left no doubts about voters\u2019 mindset on abortion: Protasiewicz won by more than 11 percentage points.\u00a0<\/p>\n On Wednesday, the now liberal-leaning court did what voters had wanted and struck down<\/a> the state\u2019s 176-year-old \u201czombie\u201d abortion law, which made it a felony for anyone other than the mother or a doctor in a medical emergency to destroy \u201can unborn child.\u201d In a 4-to-3 decision, Justice Rebecca Dallett <\/strong>said the old\u00a0law was no longer valid because the Wisconsin legislature had effectively repealed it by enacting a myriad of abortion restrictions since Roe<\/em> was handed down in 1973.<\/p>\n We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the \u201cwho, what, where, when, and how\u201d of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion. Accordingly, we hold that the legislature impliedly repealed [the 1849 law] as to abortion, and that [the zombie law] therefore does not ban abortion in the State of Wisconsin.<\/p>\n<\/blockquote>\n Rejecting the claim that the zombie law should be revived, Dallett wrote, \u201cA statute may be repealed either expressly, by enacting a subsequent statute that repeals the earlier one, or by implication.\u201d She cited a number of regulations that Wisconsin lawmakers had passed during the Roe<\/em> era, including a law criminalizing only those abortions performed after viability; laws requiring ultrasounds, a 24-hour waiting period, and parental consent; bans on government funding, and a 2015 law<\/a> restricting abortions after 20 weeks of pregnancy, signed by the-then governor, Republican Scott Walker.\u00a0<\/p>\n The court\u2019s decision on Wednesday effectively upholds the 20-week ban, and Walker posted<\/a> on X, \u201cHad I not signed that law, there would be no real legal protections for the unborn in Wisconsin after this decision by the Wisconsin Supreme Court.\u201d\u00a0<\/p>\n The lawsuit against the Wisconsin zombie law was brought by Attorney General Josh Kaul, a Democrat. Defending the 1849 law was Joel Urmanski, Sheboygan County\u2019s district attorney, who argued that the Roe<\/em>-era restrictions were consistent with the older ban. Without the change in the court, the ruling could easily have gone the other way; last year, the Arizona Supreme Court declared<\/a> that state\u2019s 1864 abortion law to be enforceable\u2014a ruling later repealed<\/a> by state lawmakers.<\/p>\n In a concurring opinion, Chief Justice Jill Karofsky cited stories of women who died from unsafe, illegal abortions, including her own great-grandmother in 1929. \u201cLike so many others,\u201d Karofsky wrote, \u201cshe died because society did not recognize her as someone with the \u2018dignity and authority to make these choices.’\u201d <\/p>\n The Wisconsin Supreme Court was the focus of another intense partisan battle this April, when Elon Musk spent more than $25 million trying to defeat progressive candidate Susan Crawford for a seat being vacated by liberal Justice Ann Walsh Bradley. Instead, Crawford beat<\/a> Musk\u2019s pick, Brad Schimel, to preserve the liberal majority on the high court through at least 2028.<\/p>\n As my colleague Ari Berman wrote<\/a>, the stakes went way beyond abortion:<\/p>\n \u201cIt\u2019s a seismic event both inside and outside Wisconsin. On a state level, the court could soon decide the fate of an 1849 abortion ban, a law restricting collective bargaining for public sector unions, and Wisconsin\u2019s gerrymandered congressional maps\u2014the latter of which could help determine which party controls the US House<\/a> in 2027.<\/p>\n<\/blockquote>\n Crawford takes office in August. Bradley voted with the majority to strike down the zombie abortion law.<\/p>\n<\/p><\/div>\n\n
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