In no surprise, Supreme Court overturns 1849 abortion law

In a 4-3 ruling two days before the Fourth of July, progressive justices on the Wisconsin Supreme Court struck down Wisconsin’s 176-year-old abortion ban, saying multiple laws enacted since then had effectively repealed the 1849 statute.

“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 for the majority. “Accordingly, we hold that the legislature impliedly repealed [the 1849 statute] as to abortion, and that [it] therefore does not ban abortion in the state of Wisconsin.”

Dallet wrote that the case was about giving effect to 50 years’ worth of laws passed by the legislature: “The legislature, as the peoples’ representatives, remains free to change the laws with respect to abortion in the future,” she wrote.

Pro-life opponents of this week’s decision contended that the legislature never intended to repeal the 1849 statute with those laws, but were merely enacting allowable restrictions after the U.S. Supreme Court’s Roe v. Wade decision legalized abortion nationwide.

In effect, they were more of an attempt to salvage as much of the 1849 statute as possible and to ameliorate the worst effects of Roe v. Wade, exactly the opposite of what the justices found this week, critics argued.

Indeed, Pro-Life Wisconsin legislative director Matt Sande said that, in Hui v. Castenada (2010), the Court found disfavor with repeal by implication: “As we have emphasized, repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest,” the court stated in that decision. 

“It was certainly never the intent of the legislative authors of modern abortion regulations post-Roe and Casey to repeal [the 1849 statute] or they would have expressly done so,” Sande said. “They did not. They were simply attempting to mitigate the ravages of abortion under the onerous dictates of the Roe/Casey legal regime.”

Sande said that the Wisconsin Supreme Court was unpersuaded that the legislature intended to repeal [the 1849 ban] when it enacted a Roe-conforming statute, quoting that case: “Implied repeal of statutes by later enactments is not favored in statutory construction.”

In sum, Sande said, respect for Wisconsin Supreme Court case law history, legislative intent, logic, and justice are not the aim of the radicalized court.

“Unfettered abortion is,” he said.

In her opinion, Dallet sought to dismiss pro-life criticisms.

“A statute may be repealed either expressly, by enacting a subsequent statute that repeals the earlier one, or by implication,” she wrote, citing State v. Dairyland Power Coop. “Although implied repeal is ‘not a favored concept in the law,’ it is nonetheless deeply rooted in Wisconsin law and is indeed older than the state itself.”

In a concurring opinion, chief justice Jill Karofsky focused on what she called the “brutal consequences” of the statute and how landmark U.S. Supreme Court decisions impact “pregnant people.” She told the stories of four women “to illustrate the real-world consequences of severe abortion restrictions,” among them a black woman in Georgia who avoided seeking health care because of that state’s strict abortion laws, instead taking an abortion pill ordered online.

She subsequently died from a lethal combination of pain killers after suffering complications, Karofsky wrote.

Another scathing dissent

Writing in dissent, conservative justice Rebecca Bradley renewed her repeated complaint that the progressive majority was making political rulings based on their personal ideologies.

“The majority erases a law it does not like, making four lawyers sitting on the state’s highest court more powerful than the People’s representatives in the legislature,” Bradley wrote. “Any remaining doubt over whether the majority’s decisions are motivated by the policy predilections of its members has been extinguished by its 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.”

She also took aim at Karofsky’s language and anecdotal approach.

“Not content with effacing the law, chief justice Jill Karofsky rewrites history, erases and insults women by referring to mothers as ‘pregnant people,’ slanders proponents of the pro-life perspective, and broadcasts dangerously false narratives about laws restricting abortion,” Bradley wrote. “Laden with emotion, steeped in myth, and light on the law, the concurrence reads as a parody of progressive politics rather than the opinion of a jurist.”

Offering only policy considerations, Bradley wrote, Karofsky’s concurrence obscured what the case actually concerns. 

“This case was never about what abortion policy should be,” she wrote. “It was always about who decides. Chief justice Karofsky makes an emotional appeal for amending Wisconsin’s abortion law. Her arguments belong in the legislature, which is equipped (and authorized) to debate the issue, sift through statistics and stories (the suspect along with the valid), and enact a policy reflecting the will of the People.”

In another concurrence, justice Annette Ziegler said the court was ill-equipped to decide the issue of abortion. 

“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,” Ziegler wrote. “Some have promised the result delivered with this opinion. While the expediency of this result might be quite satisfactory to many, it is not the constitutional role of the court to deliver results in order to please a particular constituency.”

But important principles have been cast aside, Ziegler wrote. 

“It seems that because four members of this court wish to strike [the law] from the statute books — however flimsy the legal justification may be — the majority trudges on,” she wrote.

The court should not be stepping in to legislate on the subject, Ziegler asserted.

“To be clear, if we did not address the issue and provide an answer, the public would still have recourse through the legislature,” Ziegler wrote. “As a practical matter, it is quite common for a court to not answer questions presented to it, no matter how much the answer may be desired. In fact, we deny more petitions for review (or petitions for bypass) than we grant. And even when we grant such petitions, we sometimes determine that an answer to the question presented will not be provided.”

The opinion would no doubt be touted as a great victory for abortion access in the press and beyond, Ziegler stated. 

“‘But before popping the champagne on [this court’s] latest edict’ one should pause and ask what price has been paid for today’s decision: the people of Wisconsin’s ability to democratically decide for themselves what the laws of the state shall be, the separation of powers between the branches of our state government, and this court’s credibility as a neutral judicial body — to name but a few of the costs,” she wrote. 

Those who ‘win’ today may like the result, but an activist court — whether liberal or conservative — endangers the rule of law and offends the constitution, Ziegler wrote.

In his own dissent, justice Brain Hagedorn was equally blunt.

“The Wisconsin Constitution vests the lawmaking power of the people in the state legislature,” Hagedorn wrote. “But today, the Wisconsin Supreme Court effectively deletes a law from the books, taking this power unto itself. Sure, the majority opinion is laden with legal jargon a reader might think reflects a reasoned judicial opinion. Don’t be fooled. This 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, Hagedorn wrote.

“This decision does not derive from a neutral application of the law,” he wrote. “It does not even pass the smell test. But it is more than that. If the people’s policy choices will be constantly second-guessed by this court, our very system of self-government is in danger. The abortion policies the court wipes away today were passed by the legislature and signed by the governor. These policy questions will continue to divide Wisconsinites. But the question of who decides what the law should be ought not divide us. Today, the court aggrandizes power to itself, rewrites the law in its own image, and undermines our constitutional order.”

As for implied repeal, Hagedorn wrote, that would require a singular act covering the entire subject area of abortion. 

“The final inquiry is an honest assessment of whether the legislature clearly meant to repeal the law,” he wrote. 

And when the relevant legislative enactments are examined, Hagedorn continued, it is “glaringly obvious” that the legislature did not intend to repeal the statute. 

“Instead, the abortion statutes in Wisconsin developed against the backdrop and in response to Roe v. Wade, which rendered [the 1849 statute] unenforceable,” he wrote. “Reading the majority, you’d be forgiven if you blinked and missed the fact that the story of abortion law in Wisconsin between 1973 and 2022 completely depends on and flows from Roe v. Wade and its progeny. Even though this story is missing from the majority, notwithstanding Roe, the legislature preserved [the 1849 statute] and even amended it despite its unenforceability.”

In light of the overwhelming evidence that the legislature did not repeal the 1849 statute, Hagedorn asked, how did the majority reach the opposite conclusion? 

“It turns a blind eye to all of it,” he wrote. “The majority does not point to a singular act. It does not demonstrate that the smattering of post-Roe laws covered the entire field. It does not deal fairly with the text or nature of the later-enacted statutes. It does not wrestle with the relevant statutory evidence — including the references to and amendments of [the 1849 statute] after it was purportedly repealed. The majority does not even countenance Roe’s obvious effect on Wisconsin’s various post-1973 abortion laws.”

An honest statutory analysis guided by the law would examine and consider all of this, Hagedorn asserted. 

“So 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?” he asked again. “The reasons are obvious, and they have nothing to do with the law.”

Richard Moore is the author of “Dark State” and may be reached at richardd3d.substack.com.