Antiquated Laws Restored in Wake of Roe Reversal

Wisconsin's 1849 abortion ban may or may not be back in effect.

Molly Beck, Milwaukee Journal Sentinel (“Roe decision means an immediate halt to abortion in Wisconsin, setting the stage for the state’s 1849 ban to take effect“):

Wisconsin doctors will immediately stop providing abortions following a ruling Friday by a divided U.S. Supreme Court that struck down the court’s landmark Roe v. Wade ruling that made abortion legal for the last 50 years.

The Supreme Court’s decision to overturn the 1973 ruling that legalized abortion in the U.S. could put back into effect a state law passed in 1849 that bans Wisconsin doctors from performing abortions except when saving the life of the mother.

Attorneys for supporters and opponents of abortion access have long said overturning Roe would put back into effect the state ban, but there is sure to be a legal challenge.

“I don’t know if (the state abortion ban) is enforceable or not, but there isn’t going to be anyone who performs abortion in Wisconsin for the time being because they don’t want to take the risk,” said Lester Pines, founder and senior counsel of Pines Bach law firm who is representing Planned Parenthood in a lawsuit against the state over its abortion laws.

“The practical effect of this is, for the time being, women in Wisconsin who are seeking abortions will go to Illinois or Minnesota.”

Whether the law is enforceable is a question that likely won’t be answered definitively until a judge opines on the matter, according to the nonpartisan Wisconsin Legislative Council.

Rick Esenberg, president and chief counsel of the conservative Wisconsin Institute for Law & Liberty, said he believes the state’s abortion ban is in effect, “but this is America so there will be litigation.”

Some legal experts believe subsequent abortion statutes repealed the original 1849 law, but Esenberg said he didn’t believe the argument would be successful in court.

I have no insight into the ins and outs of Wisconsin’s history with abortion laws or how this might play out in the court. That said, several things come to mind.

First, Wisconsin is almost surely not the only state with an antiquated abortion law on the books. Roe was handed down half a century ago and the issue was more-or-less moot in states not actively trying to skirt the ruling.

Second, the draft of Alito’s opinion leaked weeks ago. Wisconsin surely had time to repeal or modify the law if its leadership wanted to.

Third, laws from 1849 probably shouldn’t be on the books. Statutes should have reasonable sunset provisions requiring renewal to stay in force.

Fourth, laws aren’t self-executing. This only matters if state or local officials in Wisconsin try to enforce it. But the problem with antiquated laws being on the books is that laws no longer reflecting the will of the people might well be selectively enforced based on the whims of officials.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College. He's a former Army officer and Desert Storm veteran. Views expressed here are his own. Follow James on Twitter @DrJJoyner.


  1. de stijl says:

    I gotta tell you, this recent crap has got me feeling low.

    Supreme Court going rogue. J6 Commission revelations.

    We are hanging on by a thread and the reactionaries have a pair of scissors. The ultimate pair of scissors in the Supreme Court.

    We barely dodged the bullet with Trump and the 2020 election. We are now finding out how close we got. American democracy was on the knife’s edge 1/6/2021. We could have lost it all.

    I am hoping overreach will boomerang. An election correction. A lot of people are going to get voter motivation by the Roe decision and by the concealed carry decision. I hope.

    But Ds suck at midterm turnout.

    I worry for and am depressed by our probable future. This is very bad.

  2. EddieInCA says:

    According to Gov of Wisconsin, yesterday on Don Lemon’s show on CNN, abortion is illegal now in Wisconsin per the 1849 law:

    1849 Wisconsin Criminal Abortion Statute
    940.04 Abortion.
    (1) Any person, other than the mother, who intentionally destroys the life of an
    unborn child is guilty of a Class H felony.
    (2) Any person, other than the mother, who does either of the following is guilty of a
    Class E felony:
    (a) Intentionally destroys the life of an unborn quick child; or
    (b) Causes the death of the mother by an act done with intent to destroy the life of
    an unborn child. It is unnecessary to prove that the fetus was alive when the act so
    causing the mother’s death was committed.
    (5) This section does not apply to a therapeutic abortion which:
    (a) Is performed by a physician; and
    (b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of
    the mother; and
    (c) Unless an emergency prevents, is performed in a licensed maternity hospital.
    (6) In this section “unborn child” means a human being from the time of conception
    until it is born alive

    We’ve gone back 173 years. Just what the GOP wants. What’s next? Griswold? Loving? Obgerfell?

  3. OzarkHillbilly says:

    @EddieInCA: What’s next? Griswold? Loving? Obgerfell?

    D) All of the Above.

  4. JKB says:

    Democrats had 50 years to codify the viability standard of Roe in state law. What were they doing? Perhaps the lose of the ‘Acid, Amnesty, Abortion’ candidate in ’72 stung a little too much. Although it would seem they could have just presented such bill as housekeeping in the early years.

  5. Lounsbury says:

    @JKB: Relying on the well established legal basis in common law of stare decisis before radical reactionary religious extremism wearing the false label of conservativism took over….
    Odd thing that, relying on established precedent and rule of law in a modern democracy, eh?

    Statutes should have reasonable sunset provisions requiring renewal to stay in force.

    That’s an absurd pretence among American right, you want to bog up legislative process renewing laws against murder, or other established law?

  6. Just nutha ignint cracker says:

    @JKB: Well, my state (Washington) used the time to maintain liberal abortion laws that conformed to Federal rulings. I suspect that in other states, Democrats had a hard time getting things done. But you’re right on the whole “only Democrats can do things that make the world better” part.

    That’s kind of sad though. I would think you’d want to do good things, too. 🙁

  7. Barry says:

    James: “Second, the draft of Alito’s opinion leaked weeks ago. Wisconsin surely had time to repeal or modify the law if its leadership wanted to.”

    James, are you really so ignorant of the current US political system that you think that that was possible?

    Do you also not know that Wisconsin is a gerrymandered state under GOP occupation?

  8. James Joyner says:

    @Barry: I see Wisconsin as the purpliest of purple states. It’s essentially 50-50 Republican-Democrat. They had a GOP governor and replaced him with a Dem. They voted for Trump in 2016 and for Biden in 2020. They have one Dem and one Republican in their US Senate delegation.

    It’s really hard to get anything done without consensus.

  9. Mu Yixiao says:

    Wisconsin surely had time to repeal or modify the law if its leadership wanted to.

    Governor Evers called a special session of the legislature to do just that.

    It took Republicans 14 seconds to close the session.

  10. Grewgills says:

    @James Joyner:
    It is indeed very closely split, but as others have pointed out, their state legislature is not closely split. Republicans gerrymandered it to be very unrepresentative, thus the will of the majority is irrelevant in its decision making.