Dane County Court affirms legal right to abortion in Wisconsin

On Tuesday (Dec. 5), a Dane County circuit court issued a final ruling determining that an 1849 Wisconsin law does not apply to abortions provided with the consent of the pregnant person. The decision declares that the 1849 law does not prohibit abortions. The ruling means abortions in Wisconsin are legal under restrictions established by other state laws.

“This week’s decision provides critical clarity for those seeking and providing abortion healthcare services in Wisconsin and is an important step for abortion access,” says Jenny Higgins, director of the UW Collaborative for Reproductive Equity (CORE) and the Bissell Professor of Obstetrics and Gynecology at UW-Madison.

“Abortion care is a critical part of overall reproductive healthcare, and Wisconsinites need and deserve access to this service,” Higgins continues. “However, while services are currently available in Dane and Milwaukee Counties, major gaps in access exist. Many legal, logistical, and financial barriers remain for Wisconsinites seeking abortion care – a necessary element of healthcare and bodily autonomy.”

The June 2022 U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization overturned the federal right to abortion established by Roe v. Wade in 1973. Each state now determines the legality of abortion access. The Dobbs decision reactivated an 1849 Wisconsin law interpreted by some as banning nearly all abortions. Abortion providers in the state stopped offering services for fear of criminal prosecution while courts determined whether the law was enforceable.

In July 2023, the same Dane County judge who issued yesterday’s decision released a preliminary ruling in which she expressed the position that the 1849 law does not prohibit voluntary abortions. Based on that ruling, Planned Parenthood of Wisconsin resumed abortion services in September at two locations in Madison and Milwaukee.

Planned Parenthood is currently the only abortion provider in the state. Since June 2022, few if any Wisconsin healthcare systems have allowed their physicians to provide abortions. This week’s decision will lessen legal concerns and may increase the number of doctors who can provide this care.

In practice, abortion was unavailable in Wisconsin — except in rare cases when a pregnant person’s life was documented as being at risk — from June 2022 to September 2023. A national monitoring effort documented that an average of 620 fewer abortions took place in Wisconsin each month following Dobbs. That amounts to at least 9,000 Wisconsinites since June 2022 who could not obtain the in-state abortion care they sought.

Even pre-Dobbs, abortion care was heavily restricted and difficult to access in Wisconsin. A CORE brief provides an overview of these restrictions, including insurance and funding prohibitions, mandatory counseling, waiting periods, and gestational limits. These medically and scientifically unfounded laws are again in effect now that abortion services have been reinstated in the state.

While abortion restrictions harm all pregnant people, they cause greater harm to people who are systematically denied access to health care, economic opportunity, and safe communities in which to parent their children. Black and Brown Wisconsinites, rural residents, minors, and those living on low incomes are most harmed by these barriers to abortion care.

Research shows that denial of desired abortion care has serious adverse health, emotional, financial, and family-related consequences.

“The evidence overwhelmingly documents that abortion restrictions cause harm to people seeking care, families, and communities, and they hit hardest those individuals with the fewest social and economic resources,” says Higgins. “Accessible and affordable abortion care services are essential for reproductive equity, autonomy, and the wellbeing of pregnant people in Wisconsin.”

The ruling is likely to be appealed to the Wisconsin Supreme Court.

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