Wisconsin Planned Parenthood Resumes Abortions After Ruling Against 1840s Abortion Statute

The Midwest state was among the few states with a pre-Roe abortion ban still on the books at the time that Roe was struck down.

The  Planned Parenthood in Oshkosh, Wisconsin, is seen on June 16, 2020.
The Planned Parenthood in Oshkosh, Wisconsin, is seen on June 16, 2020. (photo: Lisa Schulz / Shutterstock)

The abortion provider Planned Parenthood will resume offering abortions in Wisconsin in the wake of a court ruling that ruled against a putative 1840s-era ban on those procedures.

The development points toward continued national conflict after last year’s Supreme Court repeal of Roe v. Wade, with state governments, abortion providers and pro-life activists jockeying to hold their respective lines amid a legal framework in which abortion is no longer a constitutional guarantee. 

Planned Parenthood of Wisconsin said in a release on Thursday that it would begin providing abortions in multiple locations in the state next week. The organization said it had earlier “made the agonizing decision to suspend abortion services” in the wake of Roe’s repeal. 

The abortion provider pointed to a July ruling at the Dane County Circuit Court that ruled an 1840s Wisconsin law was “not enforceable for voluntary abortions,” as Planned Parenthood put it.

Sheboygan County District Attorney Joel Urmanski had said the state’s 1849 abortion law — which has since been subsumed by modern state statute — could be used to prosecute abortion providers in the state. But the Dane County court ruled otherwise, finding the law addressed only the legal act of feticide and not abortion itself.

The statute “does not prohibit a consensual medical abortion,” Judge Diane Schlipper wrote in the ruling; per the statute, she said, abortion providers only commit a crime if the abortion occurs “after the fetus or unborn child reaches viability.”

Planned Parenthood of Wisconsin said it had made the decision to restore abortion services after “consultation with attorneys, physicians, partners, and other stakeholders.”

Urmanski did not immediately respond to a request for comment on Friday on Planned Parenthood’s resumption of abortion services and whether or not his office would be pursuing other means to prohibit abortion in the state.

Schlipper noted in her July ruling that the decision was “not a final ruling for purpose of appeal.” 

Pro-life groups were quick to respond to Planned Parenthood’s abortion resumption. Wisconsin Family Action called the decision “devastating news for innocent preborn children and Wisconsin mothers who deserve better than abortion,” while Pro-Life Wisconsin said it would continue to “fight for the enforcement of [the state’s] current abortion ban.”

In a statement to CNA, meanwhile, Erin Hawley, the vice president of the Alliance Defending Freedom’s Center for Life and Regulatory Practice, argued that Wisconsin law is “clear” in that it mandates “unborn children are to be protected from the harms of abortion.” 

“And under the Dobbs ruling, states can now enact their pro-life laws that have been on the books for decades,” she said. “Courts should respect this decision and allow states to protect unborn life and women’s health as much as possible.”

The 1849 provision had been criticized by Wisconsin Democrats following Roe’s demise last year. State Gov. Tony Evers and state Attorney General Josh Kaul had both advocated the repeal of the pre-Civil War law.

Wisconsin was among the numerous states with laws in place that were set to activate if and when Roe was finally repealed. 

More than a dozen states had passed “trigger laws” to automatically kick in after Roe’s repeal. Wisconsin was among the few states with a pre-Roe abortion ban still on the books at the time that Roe was struck down.