On Thursday, Planned Parenthood made the surprising announcement that it would once again provide abortion services in Wisconsin, despite the fact that a court has not yet issued an injunction prohibiting state officials from prosecuting doctors who perform abortions and litigation regarding the legality of abortion in the state has not yet been resolved.
Since the Supreme Court overturned Roe v. Wade more than a year ago, abortions in Wisconsin have not been readily accessible, yet in July of this year, a court in the state found that a 174-year-old legislation that seems to restrict abortions across the state does not in fact do so. However, the ruling at question in Kaul v. Urmanski included an effort by the prosecution to have the case thrown out of court. A final, binding order from the court preventing this prosecutor from actively targeting abortion providers has not yet been issued in the Kaul case.
Importantly, “any person, other than the mother” who “destroys the life of an unborn child” is guilty of a crime under the 1849 legislation at question in the Kaul case. Therefore, it would be unreasonable to apply the legislation to those who had abortions. Abortion services, which Planned Parenthood says it will begin providing in Wisconsin on Monday, will likely be protected from prosecution under a statute passed in 1849.
However, Wisconsin abortion providers (at least before the Planned Parenthood decision) had good cause to worry that they may be punished under the 1849 legislation, despite the fact that there are compelling reasons that this very antiquated restriction on abortions was modified or eliminated by a subsequent statute.
Six weeks have passed since Democrats essentially took control of the state high court, which had previously been dominated by conservative Republicans. Newly appointed Justice Janet Protasiewicz ran on a platform of protecting abortion rights and opposing the partisan gerrymander that has given the Republican Party near-total control of the state legislature. She ended up winning by a huge margin.
As Protasiewicz moves to strike down the state’s gerrymandered maps, numerous Republican legislators seem to be backing away from a threat to impeach her, an action that would certainly violate the federal Constitution.
The July court order, the new state supreme court majority, and the reduced threat of impeachment all suggest that it is very likely that abortion will soon be declared legal in Wisconsin, though abortion providers cannot be certain of this at this time.
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Is it true then that abortion is outlawed in Wisconsin?
When taken at face value, the 1849 statute seems to prohibit abortion. As stated in the law, “any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $5,000 or imprisoned not more than 3 years, or both.” Anyone who “intentionally destroys the life of an unborn quick child” (“quick” refers to the time when a fetus starts to move within the uterus) faces a harsher 15-year punishment under a separate article.
However, a different law was enacted by the Wisconsin legislature in 1985, making abortion illegal only after a fetus is “viable,” which is defined as a physician’s determination that “there is a reasonable likelihood of sustained survival of the fetus outside the womb.” This occurs between weeks 23 and 25 of a pregnancy. There was a complete prohibition on abortion in 1849, but the current rule established in 1985 allows abortions up to fetal viability.
In spite of this, the statute from 1849 has never been officially overturned.
The state supreme court seemed to settle the conflict between the two statutes in State v. Black (1994) by limiting the scope of the earlier statute to include only “feticide,” an act of violence committed “presumably without the consent of the mother,” and not “consensual abortions.”
The details of the Black case are appalling. Five days before the due date, the husband attacked his pregnant wife, murdering the unborn child. The husband continued by saying that if he was subject to prosecution under the 1849 statute, then it might “be used against a woman or her physician (in the context of performing an abortion) as well.”
The court rejected this contention by using a strict interpretation of a legislation from 1849. State supreme court rules that this earlier legislation “is not an abortion statute” and solely “proscribes the intentional criminal act of feticide: the intentional destruction of an unborn quick child presumably without the consent of the mother.” The more recent legislation from 1985 regulated what were called “consensual abortions.”
In her July judgment in the Kaul action, state trial judge Diane Schlipper cited Black extensively in reaching the conclusion that the 1849 legislation “does not prohibit a consensual medical abortion.”
Therefore, Planned Parenthood is probably not putting its doctors in danger by resuming abortion care in Wisconsin, although there is no certainty that Schlipper’s decision will be upheld on appeal and Schlipper has not yet issued a formal injunction preventing prosecutors from targeting abortion providers.
The right-wing majority on the state supreme court was in risk of overruling or ignoring Black’s decision before Protasiewicz gained her seat. Now that Democrats hold a 4-3 majority on the state high court, however, that threat no longer seems to be present.
To be sure, Planned Parenthood is taking a big risk by resuming abortion services on Monday before they know the outcome of the Kaul case.