The Wisconsin Supreme Court voted 4–3 on July 2 to strike down the state’s 176-year-old almost total ban on abortion.
The court majority found that the enactment of newer state laws regulating abortion had the effect of repealing the restrictive abortion law, known as Section 940.04(1).
“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“Accordingly, we hold that the legislature impliedly repealed [Section] 940.04(1) as to abortion, and that [Section] 940.04(1) therefore does not ban abortion in the State of Wisconsin.”
The abortion statute, which Wisconsin lawmakers never formally repealed, had been in effect until 1973 when the U.S. Supreme Court legalized abortion nationwide in Roe v. Wade. The law provided an exception for a “therapeutic abortion” needed to save the mother’s life.
In 2022, the U.S. Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. The court held that the U.S. Constitution does not guarantee a right to abortion. The ruling returned the regulation of the procedure to the states.
The Dobbs ruling prompted a blizzard of state-level legislation either to restrict or preserve abortion access, as well as the challenge to the Wisconsin law.
Dissenting Opinions
Justice Annette Ziegler filed an opinion dissenting from the July 2 decision, calling it “a jaw-dropping exercise of judicial will” and a “dangerous departure from our constitutional design.”Ziegler said that in the majority opinion, four justices invented their own theory of “implied repeal” while ignoring “traditional judicial decision-making.”
The majority scrubbed the abortion measure from the law books “without ever identifying which legislative enactment in particular repealed it and despite the fact that the legislature has recently amended [Section] 940.04—twice—and has referenced the statute in other enactments,” Ziegler wrote.
Justice Rebecca Bradley wrote in her dissenting opinion that the majority opinion was a “feeble attempt to justify a raw exercise of political power.”
“The majority not only does violence to a single statute; it defies the People’s sovereignty,” Bradley wrote.
Justice Brian Hagedorn also filed a dissenting opinion, which Bradley joined.
Hagedorn wrote that the majority opinion is “pure policymaking, driven by antagonism toward a law the majority does not like.”
“The end result is that the policies enacted by the people’s representatives are gone—scratched out with a giant judicial eraser,” he wrote.
The new ruling came after a high-profile election to the state Supreme Court that culminated in April with Democrat-backed Susan Crawford prevailing over Republican-backed Brad Schimel for an open seat on the court. Crawford’s win meant that liberals will maintain their 4–3 edge on the court until at least 2028.
Crawford has yet to be sworn in and did not participate in the new ruling.
