The 176-year-old ban—which stated that anyone other than the pregnant person “who intentionally destroys the life of an unborn child” could face up to six years in prison and a $10,000 fine—snapped back into effect after the U.S. Supreme Court overturned Roe v. Wade in June 2022. The pre-Civil War law, which also threatened to enshrine fetal personhood, offered exceptions only for “therapeutic abortions,” whatever that means. At the time (in 2022, not 1849), the Milwaukee Journal Sentinel reported that Pro-Life Wisconsin planned to use the 1849 ban as an opening to also get IVF, birth control, and contraception banned.
But after Wisconsin’s Democratic Attorney General Josh Kaul and Governor Tony Evers sued, a lower court blocked the ban in July 2023. Kaul and Evers argued that any abortion legislation passed during the 49 years of Roe should supersede the 1849 ban, including a 1985 law that allows abortion through “viability” (generally considered to be around 24 weeks, but it can vary by pregnancy), with exceptions for the life and health of the pregnant person.
In the 4-3 decision on Wednesday, the court’s liberal majority agreed, leaving in place the more recent law.
“We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the ‘who, what, where, when, and how’ of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion,” liberal Justice Rebecca Dallet wrote in the majority opinion. “Accordingly, we hold that the legislature impliedly repealed [the 1849 ban] to abortion, and that [that law] therefore does not ban abortion in the State of Wisconsin.”
New Supreme Court Justice Susan Crawford won’t be sworn in until August, so she didn’t participate in the ruling. But the future of Wisconsin would look a lot more grim if Musk had his way. On April 1, the state voted in a special election to replace a retiring liberal justice on the court, in what became the most expensive judicial court race in U.S. history. Crawford, who’d previously represented Planned Parenthood, a teachers union, and a voting rights organization, was up against former state attorney general Brad Schimel, who said during the race that women were too emotional to rule on abortion.
Apart from sinking millions into Schimel’s campaign, Musk once handed out two $1 million checks at a Schimel rally (one of the recipients was literally the head of Wisconsin College Republicans), and paid people $100 to sign a petition against “activist judges.” His PACs also harassed Wisconsin voters by texting them photos of Emily Ratajkowski in a bikini to get their “attention.” Musk’s interest in the race had less to do with reproductive rights and much more to do with Tesla’s ongoing lawsuit against the state, as well as installing another sycophant in Trump’s posse (Schimel once dressed up as Trump for Halloween). Still, it’s possible that Musk’s blatant bribery and voter manipulation helped anyone who may have been on the fence cast their vote for Crawford.
A win for abortion rights stemming from a Musk humiliation is as rare an event as Halley’s comet. Consider enjoying a block of cheese tonight in Wisconsin’s honor.
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