A conservative prosecutor struggled Monday to persuade the Wisconsin Supreme Court to revive the state’s 175-year-old abortion ban, drawing criticism from two of the court’s liberal justices during the pleadings.

Republican Sheboygan County Prosecutor Joel Urmanski asked the high court to overturn a Dane County judge’s ruling last year that struck down the ban. A decision is not expected for weeks, but abortion supporters will almost certainly win the case given that liberal judges control the court. One of them, Janet Protasiewicz, noted during the election campaign that she supported abortion rights.

Monday’s two-hour session was little more than political theater. Liberal Justice Rebecca Dallet told Urmanski’s lawyer, Matthew Thome, that the ban was passed in 1849 by white men who held all the power and that he was ignoring everything that had happened since. Jill Karofsky, another liberal justice, pointed out that the ban provides no exceptions for rape or incest and that reactivation could lead doctors to refuse medical care. She told Thome he was essentially asking the court to sign a “death warrant” for Wisconsin’s women and children.

“It’s the world gone crazy,” Karofsky said.

The ban stood until 1973, when the United States Supreme Court’s landmark decision, Roe v. Wade, legalizing abortion nationwide, overturned it. However, lawmakers never repealed the ban, and conservatives argued that the Supreme Court’s decision to overturn Roe two years ago revived it.

Democratic Attorney General Josh Kaul filed suit challenge the law in 2022. He argued that a 1985 Wisconsin law that prohibits abortion once the fetus reaches the point where it can survive outside the womb supersedes that ban. Some babies can survive with medical help after 21 weeks of gestation.

Urmanski dispute that the ban was never repealed and that it can coexist with the 1985 law because that law at no time legalized abortion. Other modern restrictions on abortion also do not legalize the practice, he asserts.

Dane County Circuit Judge Diane Schlipper ruled last year that the ban prohibits feticide – which it defines as the killing of a fetus without the mother’s consent – ​​but not consensual abortions. The ruling encouraged Planned Parenthood to resume providing abortions in Wisconsin after halting the procedures following Roe’s overturn.

Urmanski in February asked the state Supreme Court to overturn Schlipper’s decision without waiting for a lower appellate ruling.

Thome told the justices Monday that he was not discussing the implications of reinstating the ban. He argued that the legal theory that new laws implicitly repeal old ones is flimsy. He also argued that the ban and new restrictions on abortion can overlap, as can laws establishing different penalties for the same crime. A ruling that the 1985 law effectively repealed the ban would be “undemocratic,” Thome added.

“It’s a law that this Legislature has not repealed and you say no, you actually repealed it,” he said.

Dallet countered that ignoring laws passed over the past 40 years, dating back to 1849, would be undemocratic.

Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly on is there a constitutional right to abortion in the state. The judges have agreed to take up the case but have not yet scheduled oral arguments.