The Wisconsin Supreme Court will soon make final ruling on abortion. How did we get here?
Wisconsin reverted to an 1849 statute, but the case before the state Supreme Court asks whether that law specifically bans consensual abortions.
The 1849 law has been on hold since a lower court's ruling in December 2023. The state then returned to its pre-Dobbs abortion laws, under which abortion is banned 20 weeks after "probable fertilization."
"We're just waiting for a final answer on that," said Bryna Godar, a staff attorney with the State Democracy Research Initiative at the University of Wisconsin Law School. "The current state of the law has been that abortions are legal, subject to other laws we have in the state."
Here's a look back at how the case got to the Supreme Court and why this might not be the end of the road for legal challenges over abortion in Wisconsin:
The U.S. Supreme Court issued a decision overturning the landmark Roe v. Wade ruling in 1973 that made abortion legal nationwide.
In Wisconsin, there was immediate legal uncertainty about whether the 1849 law was enforceable. Planned Parenthood and other providers stopped abortion procedures.
Days after the Dobbs decision, Gov. Tony Evers and Attorney General Josh Kaul — both Democrats — filed a lawsuit in Dane County Circuit Court challenging the 1849 law.
Dane County Circuit Judge Diane Schlipper heard arguments in the case in May 2023.
In a July order, Schlipper signaled she believed the law doesn't apply to consensual abortions but to feticide — a nonconsensual act in which somebody batters a woman, causing her to lose the pregnancy.
After that interpretation from Schlipper, Planned Parenthood clinics in Milwaukee and Madison resumed abortions more than a year after pausing them. A clinic in Sheboygan resumed medication abortions in late December 2023.
"No court had ruled on this, so it was understandable that providers weren't sure what the state of the law was," Godar said. "But once you have a court ruling on that at any level in the state, then providers have a concrete answer."
More: Abortions in Wisconsin halved immediately after Roe was overturned, new CDC report says
Schlipper made her official ruling in December, determining the decades-old law doesn't prohibit abortions.
While the 1849 law is not in effect, the ruling meant the state reverted to other abortion laws passed in 1985, 2011 and 2015.
That includes a ban after 20 weeks, a 24-hour waiting period and requiring abortion-inducing drugs to be given in-person by physicians.
Sheboygan County District Attorney Joel Urmanski appealed Schlipper's ruling later that month. The case jumped past appeals courts and went directly to the Supreme Court.
The court heard arguments from attorneys for the parties involved in the lawsuit, which include three county district attorneys, physicians and the Wisconsin Department of Safety and Professional Services and Medical Examining Board.
The court had a liberal majority at the time of oral arguments, following the election of Justice Janet Protasiewicz in 2023, and kept it in the April 2025 election. Newly elected Justice Susan Crawford, who takes the bench Aug. 1, won't be one of the justices deciding the case.
It's been more than six months since the Supreme Court heard oral arguments. That timeline is on the longer side for the court, Godar said, but not abnormal.
"It's not unexpected, given the weight and importance of this issue," she said. "It also involves some complicated legal issues, statutory interpretation — it's not surprising that it's taking this long."
The court typically issues its opinions by the end of June, which marks the end of its term, but some have come out in July.
More: Brad Schimel accused the Wisconsin Supreme Court of slow-walking the 1849 abortion case. Is that happening?
For now, yes.
The court will settle whether the 1849 statute bans consensual abortions. The case is about that narrow question, rather than determining whether there's a broad constitutional right to abortion in the state.
That means the court's decision won't prevent Wisconsin lawmakers from seeking a ban on abortion in the future, Godar noted.
Some Republicans have floated banning abortion after 14 weeks and asking voters to weigh in via referendum, but Evers has said he would veto any effort that makes abortion less accessible.
More: What to know about referendums in Wisconsin, and why citizens can't petition for them
Absolutely.
There's a separate case, initiated by Planned Parenthood, asking the state Supreme Court to recognize a constitutional right to bodily autonomy, including abortion. It's not clear if the court will end up taking action on that case.
That case is premised around the 1849 law banning abortion. So, if the court decides that law doesn't in fact ban abortions, the claims in the separate case would essentially go away, Godar said.
"We could see future cases that argue there is a constitutional right to abortion in Wisconsin and challenge other laws that we have in the state related to abortion," she said. "But those would be a bit more nuanced than challenging an outright ban."
That means groups could file specific legal challenges over rules like insurance restrictions, waiting periods or ultrasound requirements.
"Even after this case, Wisconsin might continue to have uncertainty," Godar said.
This article originally appeared on Milwaukee Journal Sentinel: Wisconsin abortion law ahead of Supreme Court ruling: Where it stands
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