MADISON (WKOW) -- The Wisconsin Supreme Court heard oral arguments on whether the state's 1849 abortion law can still be enforced. Attorneys representing Attorney General Josh Kaul and Sheboygan County District Attorney Joel Urmanski made their cases Monday.

The 1849 law was Wisconsin's first prohibition on abortion, enacted during pre-civil war time. The United States Supreme Court Roe v. Wade decision in 1973 legalized abortion, nullifying Wisconsin’s law. However, state legislators never repealed it.

Two years ago when Roe was overturned, Republicans argued the 1849 law should be enforced again.

Kaul filed a lawsuit in 2022 challenging that. During Monday’s oral arguments, his team defended the ruling made in 2023 by a Dane County Circuit Court judge that stated the 1849 law outlawed feticide, but not abortion.

“The circuit court ruling had access restored in the state,and we’re going to keep looking to make sure it’s restored, hopefully through the Supreme Court decision, and then ultimately, this is going to be an issue for the legislature, because as we all know, court decisions can shift,” Kaul said in a press conference following the oral arguments.

During the hearing Kaul’s side argued the law cannot be enforced to ban abortion. His team’s main arguments included citing the 1994 decision in State vs. Black, and using implied repeal, which means a new law or statute since the 1849 law conflict, even if the new law doesn’t explicitly repeal it.

“Look at the statues that govern the people of Wisconsin, and what we have are conflicting laws,” Hannah S. Jurss, Attorney for Plaintiff Respondent.

Urmaniski’s side asked SCOWIS to overturn the Dane County judge's ruling.

“It is District Attorney Urmanski’s position that applying well established legal principles, previously recognized by this court, Wisconsin statute 940.04, which was enforced against consensual abortions prior to Roe vs. Wade, can now once again be enforced with Roe vs. Wade’s reversal,” said Matthew J. Thome, Attorney for Defendant Appellant.

Justice Jill Karofsky questioned Urmanski’s interpretation of the 1849 law, asking if there would be exceptions for rape, incest, the health of the mother or fetal abnormalities.

“I fear that what you are asking this court to do is to sign the death warrants of women and children and pregnant people in this state, because under your interpretation, they could all be denied life saving medical care, while the medical professionals who are charged with taking care of them are forced to sit idly by,” Karofsky said.

Urmanski's team did not address the arguments heard in front of justices afterwards.

In Kaul's press conference after arguments concluded on Monday, he was joined by Wisconsin Planned Parenthood representative Michelle Velasquez. She explained how they are trying to still expand care within the state.

“Things like a telemedicine ban, a two visit requirement, same physician requirement, physician only – those are just a few of the regulations that make expansion extraordinarily challenging, but it’s something that, as an organization, we’re absolutely committed to."

Planned Parenthood v. Urmanski is a case also currently in front of the supreme court.

Abortion is still legal in Wisconsin, though that could change depending on the SCOWIS decision.

More at WKOW 27 News

Madison in the Morning