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The Wisconsin Supreme Court’s newly elected liberal majority on Wednesday voted to strike down a near-total state abortion ban, voting 4-3 to overturn the stringent, 176-year-old law.
The decision reflected a deeply partisan split, with all four liberal justices voting to invalidate the 1849 abortion law and the three conservative justices dissenting.
It also crystallized the impact of the state’s Supreme Court election earlier this year that raked in millions of dollars in donations, the highest amount in U.S. history for a judicial race. It included involvement from then-Trump ally Elon Musk, former President Barack Obama and others.
Writing for the majority, Justice Rebecca Dallet said the law had been superseded by more recent precedent, including a 1985 statute that allowed for abortions up to the point of fetal viability, or around the 20-week mark.
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“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,” Dallet wrote.
“Accordingly, we hold that the legislature impliedly repealed [the 1849 ban] to abortion, and that [that law] therefore does not ban abortion in the State of Wisconsin.”
Conservative Justice Annette Ziegler, in a dissent, described the ruling as “a jaw-dropping exercise of judicial will” and charged that the liberal justices ruled on the matter based on their personal preferences.
The 1849 law, and efforts to revive it, came to the fore in Wisconsin in 2022, after the U.S. Supreme Court ruled to overturn Roe v. Wade — effectively snapping back into place the state law that had been dormant for decades.
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The Wisconsin law made it a felony for individuals in Wisconsin to perform abortions, including when the health of the woman was at risk, and without exceptions in cases of rape or incest.
Though the law was not enforced by the state in recent years, at least some Republicans had urged the state Supreme Court to keep it in place, prompting opponents to push more urgently for it to be struck down.
The 4-3 decision puts to rest the possibility that it could be revived.
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It’s also the clearest sign to date of the impact that liberals on the bench could have after they regained the court majority in 2023 for the first time in 15 years.
The closely watched state Supreme Court race in Wisconsin was the most expensive judicial election in U.S. history, attracting more than $100 million in donations and far eclipsing the $56 million spent on the state Supreme Court race just two years earlier, according to figures compiled by the Brennan Center for Justice.
Susan Crawford ultimately beat out conservative candidate Brad Schimel, who was backed by President Donald Trump and Musk.
Musk personally donated $3 million to the Wisconsin Republican Party earlier this year, while his two super PACs spent more than $17 million on Schimel’s behalf.
Wisconsin Gov. Tony Evers praised the state Supreme Court decision Wednesday, describing it as a win “for women and families” and healthcare professionals in the state.
“Three years ago, the U.S. Supreme Court upended five decades of precedent and threw reproductive freedom in Wisconsin and across our country into chaos,” Evers said in a statement. “I promised then to fight like hell to ensure every Wisconsinite has the freedom to consult their family, their faith and their doctor and make the reproductive healthcare decision that is right for them, and I’ve never stopped.
“Today, the Wisconsin Supreme Court upheld that basic freedom.”
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