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The Wisconsin Supreme Court’s liberal majority backed abortion rights in the state, with a ruling that highlights the importance of state courts after the U.S. Supreme Court overturned Roe v. Wade.
The state's top court, whose justices are elected, has a 4-3 liberal majority that was maintained in an April election, despite billionaire Elon Musk’s financial backing of a conservative candidate in a race that the Wall Street Journal reported "easily set a spending record for a U.S. judicial contest."
This new ruling stems from an 1849 state law that criminalized the intentional destruction of an unborn child. After the U.S. Supreme Court decided Dobbs in 2022, Wisconsin’s Democratic attorney general, Josh Kaul, sought a court declaration that the old law doesn’t ban abortion in the state today.
The state high court sided with Kaul on Wednesday. The majority reasoned that more recent state legislation “so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion.” Finding the older law had been “impliedly repealed” by those more recent developments, the court said the older law therefore “does not ban abortion in the State of Wisconsin.”
One of the conservative dissenters called the majority’s ruling “a jaw-dropping exercise of judicial will.” Another accused the majority of “eras[ing] a law it does not like.” A third wrote that the ruling “does not even pass the smell test.”
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