Wisconsin court says 19th century abortion ban cannot be enforced

Wisconsin's top state court on Wednesday said an 1849 state law banning abortion in virtually all cases cannot be enforced, rejecting claims that it was revived after a landmark U.S. Supreme Court ruling three years ago.

Wednesday's decision, which affirms a lower court, leaves in place a 2015 Wisconsin law that bans abortion after 20 weeks. The Wisconsin Supreme Court in a 4-3 decision agreed with the state's Democratic Attorney General, Josh Kaul, that while the 19th century law has never been formally repealed, it was effectively nullified by more recent laws and regulations.

In 2022, shortly after the U.S. Supreme Court overturned Roe v. Wade, which had recognized a constitutional right to abortion, Kaul sued a Republican district attorney who argued that the 1849 law was back in effect and could be enforced. The Wisconsin Supreme Court maintained its liberal majority after an April election in which the winning candidate, Susan Crawford, campaigned on her support for abortion rights. The contest became the most expensive judicial election in U.S. history and was widely seen as an early referendum on President Donald Trump.

Billionaire Elon Musk, a former Trump adviser now locked in a bitter dispute with the Republican president, and groups tied to him spent more than $20 million in an attempt to elect Crawford's conservative opponent. The 1849 law prohibits the killing of a fetus except to save the mother's life, and violations are punishable by up to 15 years in prison. It was rendered unenforceable in 1973 when the U.S. Supreme Court decided Roe v. Wade, which recognized abortion rights nationwide.

The Supreme Court in a 6-3 ruling in 2022 overturned Roe, with the conservative majority saying the prior ruling was flawed and that abortion should be left for states to regulate within their borders. Currently, 13 states have near-total abortion bans and 28 others prohibit abortions after certain points during pregnancy, according to the Guttmacher Institute, an abortion rights advocacy group.

Providers across Wisconsin stopped performing abortions in 2022 over concerns that they could be prosecuted under the 1849 state law. They resumed in 2023 after a state judge ruled in Kaul's favor and found the law unenforceable. The Wisconsin Supreme Court on Wednesday upheld that ruling.

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