Wisconsin Supreme Court just killed the “zombie” abortion law

When Wisconsin voters flipped the ideological balance of the state’s supreme court in 2023, abortion was very much on their minds. Specifically, abortion opponents were arguing that with the demise of Roe v Wade the year before, the state’s 1849 near-total abortion ban—invalidated by Roe but never overturned by lawmakers, so still technically on the books—should go into effect. The Wisconsin Supreme Court would be the ultimate decider—and thanks to the retirement of a conservative justice, the court was evenly split along partisan lines, 3 to 3.

The race for the open seat between Democratic-aligned circuit judge Janet Protasiewicz and conservative former Supreme Court justice Daniel Kelly was hard-fought and, with over $45 million spent, the most expensive judicial race in US history to that point. The final vote left no doubts about voters’ mindset on abortion: Protasiewicz won by more than 11 points. 

On Wednesday, the now liberal-leaning court did what voters had wanted and struck down the state’s 176-year-old “zombie” abortion law, which made it a felony for anyone other than the mother or a doctor in a medical emergency to destroy “an unborn child.” In a 4-to-3 decision, Justice Rebecca Dallett said the old law was no longer valid because the Wisconsin legislature had effectively repealed it by enacting a myriad of abortion restrictions since Roe was handed down in 1973.

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. Accordingly, we hold that the legislature impliedly repealed [the 1849 law] as to abortion, and that [the zombie law] therefore does not ban abortion in the State of Wisconsin.

Rejecting the claim that the zombie law should be revived, Dallett wrote, “A statute may be repealed either expressly, by enacting a subsequent statute that repeals the earlier one, or by implication.” She cited a number of regulations that Wisconsin lawmakers had passed during the Roe era, including a law criminalizing only those abortions performed after viability; laws requiring ultrasounds, a 24-hour waiting period, and parental consent; bans on government funding, and a 2015 law restricting abortions after 20 weeks of pregnancy, signed by the-then governor, Republican Scott Walker. 

The court’s decision on Wednesday effectively upholds the 20-week ban, and Walker posted on X, “Had I not signed that law, there would be no real legal protections for the unborn in Wisconsin after this decision by the Wisconsin Supreme Court.” 

The lawsuit against the Wisconsin zombie law was brought by Attorney General Josh Kaul, a Democrat. Defending the 1849 law was Joel Urmanski, Sheboygan County’s district attorney, who argued that the Roe-era restrictions were consistent with the older ban. Without the change in the court, the ruling could easily have gone the other way; last year, the Arizona Supreme Court declared that state’s 1864 abortion law to be enforceable—a ruling later repealed by state lawmakers.

In a concurring opinion, Chief Justice Jill Karofsky cited stories of women who died from unsafe, illegal abortions, including her own great-grandmother in 1929. “Like so many others,” Karofsky wrote, “she died because society did not recognize her as someone with the ‘dignity and authority to make these choices.’”

The Wisconsin Supreme Court was the focus of another intense partisan battle this April, when Elon Musk spent more than $25 million trying to defeat progressive candidate Susan Crawford for a seat being vacated by liberal Justice Ann Walsh Bradley. Instead, Crawford beat Musk’s pick, Brad Schimel, to preserve the liberal majority on the high court through at least 2028.

As my colleague Ari Berman wrote, the stakes go way beyond abortion:

“It’s a seismic event both inside and outside Wisconsin. On a state level, the court could soon decide the fate of an 1849 abortion ban, a law restricting collective bargaining for public sector unions, and Wisconsin’s gerrymandered congressional maps—the latter of whichcould help determine which party controls the US House in 2027.

Crawford takes office in August. Bradley voted with the majority to strike down the zombie abortion law.