Wisconsin Supreme Court is expected to hear oral arguments Monday regarding the enforceability of an abortion law enacted more than a decade before the Civil War.

The case will determine whether this historic legislation, which effectively bans abortion, remains applicable in modern times.

Abortion rights advocates are optimistic about their chances in the case, as the Wisconsin Supreme Court currently holds a liberal majority. One of the judges expressed support for abortion rights during her campaign, suggesting a favorable outcome for advocates. Although Monday’s arguments are largely procedural, a final decision is expected in the coming weeks.

Wisconsin’s initial ban on abortion dates back to 1849, when lawmakers enacted a law declaring that anyone who intentionally killed a fetus, except to save the life of the mother, was guilty of involuntary manslaughter. About 10 years later, new legislation made it illegal for a woman to attempt to induce her own miscarriage.

Has Wisconsin’s abortion law been revised?

In the 1950s, lawmakers further revised the language, making it a felony to kill an unborn child or cause the death of the mother with the intent to harm the unborn child. These revisions allowed a doctor, with the agreement of two other doctors, to perform an abortion if necessary to save the mother’s life.

The Roe v. Wade of the United States Supreme Court in 1973, which legalized abortion nationwide, effectively overturned Wisconsin’s abortion ban. However, state lawmakers never officially repealed the law. When the Supreme Court overturned Roe two years ago, conservatives argued that Wisconsin’s pre-existing ban was enforceable again, reigniting debate over the law’s enforceability.

In 2022, Democratic Attorney General Josh Kaul filed a lawsuit challenging the enforceability of Wisconsin’s 1849 abortion ban, claiming that a 1985 state law allowing abortions before a fetus is viable outside the The uterus replaces the old law. Viability can be achieved from 21 weeks of gestation.

Is the 1849 abortion ban valid?

However, Sheboygan County Prosecutor Joel Urmanski Republicanargues that the 1849 ban remains valid because it was never repealed. Urmanski argues that the 1985 law did not explicitly legalize abortion and that it can coexist with the earlier ban, just as other current restrictions on abortion do not legalize the practice.

Last year, Dane County Circuit Judge Diane Schlipper ruled that Wisconsin’s 1849 abortion ban prohibited feticide — defined as killing a fetus without the mother’s consent – but did not apply to consensual abortions. This interpretation encouraged Planned Parenthood to resume abortion services in Wisconsin, which had been suspended following the overturning of Roe v. Wade.

Will Wisconsin’s abortion ban stand?

In February, District Attorney Joel Urmanski asked the Wisconsin Supreme Court to overturn Schlipper’s decision, bypassing the appeals courts. The Supreme Court agreed to hear the case in July, paving the way for a final ruling on the law’s applicability.

In a separate lawsuit, Planned Parenthood of Wisconsin filed a lawsuit in February asking the state Supreme Court to determine whether there is a constitutional right to abortion in Wisconsin. The court agreed to resume the case in July, although oral arguments have not yet been scheduled. With a liberal majority in power, the chances of maintaining the abortion ban seem slim.

Liberal judge Janet Protasiewicz notably openly expressed her support for abortion rights during her campaign – a rare move for a judicial candidate, as most refrain from revealing their personal opinions to preserve their impartiality.

The Court’s three conservative justices criticized the liberal justices, accusing them of politicizing the abortion debate.

This article includes reporting from the Associated Press