The Freedom From Religion Foundation is commending the Wisconsin Supreme Court’s decision today that a draconian 19th century statute can’t be used to ban abortions.
In a 4-3 decision, the state high court ruled that the pre-Civil War near-total abortion ban is unenforceable. Writing for the liberal majority, Justice Rebecca Dallet explained that the Wisconsin Legislature effectively repealed the 1800s law by passing numerous other abortion-related laws over the past 50 years.
After the Dobbs decision overturned Roe v. Wade in 2022, the state’s few clinics halted abortion care out of fear of prosecution under a state statute dating to 1849, adopted long before women won the right to vote. The penalties included years of imprisonment.
“That was a difficult, painful 15 months for women and reproductive rights in the state of Wisconsin that we would never want to return to,” says FFRF Co-President Annie Laurie Gaylor. “We’re so pleased that reason and justice have prevailed.”
Thankfully, abortion care resumed after a county judge ruled in December 2023 that the pre-Civil War statute actually banned feticide (an assault resulting in death of a fetus) rather than elective abortion. That challenge was brought by Gov. Tony Evers and Attorney General Josh Kaul, who asserted the law did not ban “consensual abortions” and that even if it did, it had been superseded by modern laws, such as one criminalizing abortion at 20 weeks, enacted in 2015.
Janet Protasiewicz, who supports reproductive rights, won a high-stakes election to the state high court in 2023, replacing a conservative and tilting the court toward support for legal abortion. During oral arguments in November 2024, Justice Jill Karofsky suggested that applying a 175-year-old ban with almost no exceptions to the present day was a sign of a “world gone mad.”
In February 2024, Planned Parenthood filed its own lawsuit contending that the Wisconsin Constitution protects the right to bodily autonomy, including abortion. The state’s Supreme Court has agreed to decide that case, but has yet to hear arguments in it. Likely, the court was waiting to hand down today’s decision before turning to Planned Parenthood’s challenge.
Although this is a great victory for reproductive rights in Wisconsin, Christian nationalists and anti-abortionists have enacted bans in 12 states and severe restrictions in seven others. A number of surveys have found that atheists as a group are by far the most supportive of the right to abortion, which makes sense since organized religion has been abortion’s greatest foe. It will take perseverance and political might to undo these bans, protect bodily autonomy and ensure that the will of the American people (nearly two-thirds believe abortion should be legal in all or most cases) prevails over minority rule based on religious ideology.
FFRF is a national nonprofit organization headquartered in Wisconsin with more than 42,000 members across the country, including over 1,800 members in Wisconsin. FFRF’s purposes are to protect the constitutional principle of separation between church and state, and to educate the public on matters relating to nontheism.
