Abortion rights supporters in Wisconsin scored an incremental but important legal victory Friday when a judge allowed a lawsuit seeking to restore abortion access in the state to proceed.
The case, which centers on a law passed in 1849 that was seen as outlawing abortion, could eventually end up at the State Supreme Court. Liberal justices will be in the majority on that court starting next month after winning a contentious judicial election this year that focused largely on abortion.
In 2022, after the US Supreme Court eliminated the national right to abortion, clinics stopped providing abortions in Wisconsin, a closely divided state where Republicans control the legislature and a Democrat holds the governorship.
Although Democrats have argued that the 1849 law should no longer be considered to bar women from obtaining abortions, others, including county prosecutors, have publicly disagreed, creating an uneasy legal landscape in which doctors providing abortions could face criminal charges.
In her preliminary ruling Friday, which allowed the case to move forward, Judge Diane Schlipper indicated she did not believe doctors could be prosecuted for performing consensual abortions before a fetus reached viability. She wrote that “there is no such thing as an ‘1849 abortion ban’ in Wisconsin.”
The decision of Judge Schlipper, of the Circuit Court in Dane County, gave credence to the legal arguments used by abortion rights supporters and kept open a judicial path to restore abortion access. But the immediate impact of her decision was limited, and the final say on the case is widely expected to come from a higher court.
“Today’s ruling is an important victory in our fight to restore reproductive freedom in Wisconsin,” Attorney General Josh Kaul, a Democrat who filed the lawsuit against the measure, said in a statement. “Although this ruling does not resolve the case and will not be the final word in this litigation,” he said, it made clear that the law “should not be interpreted to criminalize consensual abortions.”
The ruling stemmed from a request by Joel Urmanski, the district attorney in Sheboygan County and a defendant in the lawsuit, to dismiss the case. Mr. Urmanski, a Republican, previously had indicated to local reporters that he would be open to prosecuting abortion providers under the 1849 law if a case were presented to his office.
Mr. Urmanski said in an email Friday that he was in court and had not yet reviewed the verdict. He declined to comment further. Two lawyers representing him in the case did not immediately respond to emails seeking comment.
Heather Weininger, the executive director of Wisconsin Right to Life, said in a statement that the decision was “a devastating setback in our ongoing fight to protect Wisconsin’s preborn children.”
Abortion in Wisconsin has been a defining issue in recent campaigns, with both Mr. Kaul and Gov. Tony Evers, a Democrat, noting their support for abortion rights during successful re-election campaigns last year. But because Republicans hold large majorities in the legislature, in part because of gerrymandered districts, there is no immediate legislative path to repeal the 1849 measure or pass abortion protections.
That has shifted attention to the judiciary, where conservatives have defended a one-seat majority on the State Supreme Court this year. In a spring election, a liberal lawyer, Janet Protasiewicz, focused her campaign on her support for abortion rights. She won, meaning the court’s liberal bloc will have a slim majority next month after she is sworn in.
If the case that Judge Schlipper ruled on Friday ever makes it to the Wisconsin Supreme Court, Judge Protasiewicz could be the deciding vote.