The Wisconsin Supreme Court on Wednesday struck down the state’s 176-year-old abortion ban, with the liberal majority ruling in a 4-3 decision that the 1849 law in question had been superseded by more recent statutes.
The ruling underscored the importance of a pair of recent elections for seats on the high court that were bitterly contested and later became the most expensive in the country’s history for judicial positions.
Both were won by liberal-leaning judges — Janet Protasiewicz and Susan Crawford — whose bids were fueled by a massive Democratic turnout and unprecedented fundraising successes for off-year spring elections.
Those liberal electoral wins have paid off for Democrats and abortion rights activists with Wednesday’s ruling.
“We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the ‘who, what, where, when, and how’ 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,” Justice Rebecca Dallet wrote on behalf of the majority in the ruling.
The possibility of the state’s high court ruling on abortion was a key campaign talking point for Democrats supporting liberal judicial candidates in 2023 and 2025. The 2023 race, which shattered spending records and initially became the most expensive state judicial race in national history, secured a liberal majority in Wisconsin for the first time in 15 years.
During that cycle, Protasiewicz was open on the campaign trail that she supports abortion rights and ran her first ads on abortion, in which she said, “I believe in a woman’s freedom to make her own decision on abortion. It’s time for a change.”
(Her conservative opponent, Dan Kelly, had previously provided legal advice to an anti-abortion group, referred to abortion rights organizations and politicians as promoting “sexual libertinism” in a since-deleted blog post, and was endorsed by anti-abortion groups.)
Protasiewicz’s campaigning aggravated Republicans at the time, who argued the justice was effectively promising specific judicial decisions down the line. They had similar complaints about Crawford, the liberal candidate who won earlier this year.
For conservatives, Wednesday’s ruling has seemingly affirmed their fears.
“It was very apparent from the last two Supreme Court races that [abortion] was a major reason why these women ran for the position,” Republican Rep. Glenn Grothman told NOTUS. “It just goes to the moral decline of America that today, you run as a Supreme Court judge saying that we’re going to do things differently to 120 years” ago.
Democrats disagree.
“It was ridiculous that we had to go back to 1849 law,” Rep. Mark Pocan told NOTUS. “I’m glad that [the decision] happened, and it makes us look less like a bad state.”
Protasiewicz’s election came just after the 2022 overturning of Roe v. Wade, at which point all abortions stopped in Wisconsin because of a fear of prosecution under the 1849 law.
That was despite a law passed after 1849 in Wisconsin that prohibited abortion after 20 weeks.
After the overturning of Roe, it was an open legal question if that law’s passage meant an implicit repeal of the 1849 law. Abortion services ultimately resumed in 2023 after Dane County Circuit Court Judge Diane Schlipper ruled that the pre-Civil War state law banned feticide, not abortions performed with a woman’s consent.
The race this past April was once again for the ideological majority of the court, just months after President Donald Trump flipped the state red in the 2024 presidential election. A contest that drew attention and funds from Elon Musk, spending in that race was so intense and severe that it promptly shattered the judicial fundraising record from 2023.
Those investments, in many ways, culminated in the ruling Wednesday morning. On the other side of the ideological split, the court’s conservative justices railed against the decision.
“Abandoning venerable judicial norms of neutrality, the members of the majority render decisions in accordance with the ‘values’ they espoused on the campaign trail,” Justice Rebecca Bradley wrote, later explicitly mentioning Protasiewicz’s campaign.
“Electing justices who fancy themselves super legislators, however, comes at a steep price. The People of Wisconsin have surrendered self-governance,” she wrote.
Other conservatives on the court also painted their liberal colleagues as motivated by politics.
“Our court should not, and particularly this majority should not, decide the issue because Justices on this court have — very recently — publicly made their views regarding abortion known,” Justice Annette Ziegler wrote.
In a footnote, Ziegler also explicitly mentioned campaigning: “During her campaign in 2023, then-Judge Protasiewicz expressed her support for abortion rights repeatedly.” Ziegler added that Crawford “promised the result delivered with this opinion.”
“Given the dramatic holding here — one that functionally erases a law from the books — why didn’t the majority consider the statutory evidence and apply the proper legal framework? The reasons are obvious, and they have nothing to do with the law. I dissent,” Justice Brian Hagedorn wrote.
Howard Schweber, a professor of law and politics at the University of Wisconsin-Madison, likened the implicit repeal argument to speed limits: consider if there is a law that automobiles can’t drive faster than 40 miles per hour, and then a new one is passed that says automobiles can’t drive faster than 60 miles per hour.
Schweber says the liberal court is arguing that the second law functionally invalidates the first one, and the conservatives are arguing that since 60 miles is faster than 40, the second law only adds specifications to the first. He found the liberal majority’s argument more compelling.
But he acknowledged the difficulties in judicial races becoming partisan, or subsequent decisions being interpreted as political, and had no expectation that would change anytime soon: Wisconsin has races for its Supreme Court every spring through 2029.
“If you game it out just right, the majority could flip from liberal to conservative and back to liberal, associated with some of these upcoming elections, which creates precisely the thing that courts are supposed to not be about, which is radical instability,” Schweber said in an interview.
“So whether there is a right to abortion in Wisconsin conceivably could change every few years, and that’s deeply unfortunate. It may be inescapable, given the deep partisan divisions in the court, the need to politicize the nature of judicial elections in any state that is closely won,” he said. “But that’s certainly something to watch out for and something to be concerned about.”
—
Nuha Dolby is a NOTUS reporter and an Allbritton Journalism Institute fellow.