MADISON, Wis. (CN) - The Wisconsin Supreme Court on Wednesday overruled a total ban on abortions beginning at conception, finding it was impliedly repealed by 50 years of legislation related to legally obtaining abortions since Roe v. Wade.

"In the end, the comprehensive nature of the last 50 years of legislation about abortion and the incompatibility of those laws with a near-total ban on abortion persuades us that this is the rare situation in which plaintiffs have overcome the strong presumption against implied repeal," Justice Rebecca Dallet said, writing for the majority.

Wisconsin Attorney General Josh Kaul brought the lawsuit against the district attorneys in Milwaukee County, Dane County and Sheboygan County in 2022, just after the U.S. Supreme Court overruled the precedent set in Roe v. Wade. Now Wisconsinites can legally seek abortion up to 20 weeks of pregnancy.

Kaul, along with three physicians who intervened in the case from the Medical Examining Board and the Department of Safety and Professional Services, asked the Dane County Circuit Court for affirmation that an 1849 statute banning abortion either doesn't apply to abortion at all, or has been impliedly repealed by numerous subsequent statutes.

The circuit court found that the 1849 statute "says nothing about abortion" and "does not prohibit a consensual medical abortion" since the actual text of the law actually says "intentionally destroying the life of an unborn child."

Sheboygan County District Attorney Joel Urmanski appealed, and the state's high court granted his request to bypass the appellate court and bring the case straight to the capitol building. The court heard oral arguments on Veterans Day, with patriotic music blasting from the rotunda.

On Wednesday, the Wisconsin Supreme Court found that the 1849 ban had been impliedly repealed by subsequent statutes governing how pregnant people may obtain a legal abortion in the state.

The 17-page opinion focused heavily on Kaul's argument of implied repeal, largely ignoring his assertion that the statute was not intended to apply to consensual abortion at all. The court was split along ideological lines, with all three conservative justices filing separate dissenting opinions totaling 49 pages of sharp disapproval.

Dallet points out that the Legislature enacted a comprehensive scheme governing virtually every aspect of abortion including where, when and how an abortion can be had in the state.

When a subsequent law is in direct conflict with an earlier law so much so that neither can be enforced while the other exists, the earlier law is impliedly repealed, according to Dallet.

In this case, the 1849 law bans abortion at conception, while another law written after bans abortion after 20 weeks and countless other laws written in the last 50 years mandate a waiting period, implied consent and more. In the view of the liberal justices on the bench - the majority of the court - the 1849 law cannot be enforced without voiding every law written on the topic since Roe.

At oral arguments in November, attorney Matthew Thome argued on behalf of Urmanski that the laws actually can exist in harmony. He suggested to the justices that the law is not ambiguous because healthcare providers can simply adher to the 1849 statute to avoid breaking the laws enacted since then.

"What you are getting at is that it's a vague statute but vagueness does not require mathematical precision, that's very clear from precedent," Thome said.

Chief Justice Jill Karofsky appeared offended at the suggestion.

"Mathematical precision?" Karofsky said. "Are you kidding me? We're trying to figure out if medical providers here are gonna be able to save women's lives. So, yeah. We better get this right."

Karofsky spent much of Thome's allotted time grilling him on the consequences of the 1849 statute in the modern era.

In one of many tense exchanges, she asked Thome if the 1849 statute would force a 12-year-old girl who was impregnated by her father to give birth. Thome said yes. Karofsky then asked him if a freshman at the University of Wisconsin who was raped would be forced to give birth. Thome answered in the affirmative again.

Karofsky hit back that Thome is asking the court to sign the death warrants of women and children and pregnant people across the state.

The dissents in this case were scathing, and often political.

Justice Annette Ziegler found the majority opinion to be a "jaw-dropping exercise of judicial will" and a "dangerous departure from our constitutional design," while Justice Rebecca Bradley accused Karofsky - who began her term as chief justice this week - of betraying women as a whole.

"Not content with effacing the law, Chief Justice Jill Karofsky rewrites history, erases and insults women by referring to mothers as 'pregnant people,' slanders proponents of the pro-life perspective and broadcasts dangerously false narratives about laws restricting abortion," Bradley said in her 18-page dissent.

Wisconsin Governor Tony Evers called the ruling a win for women, families, health care professions and for basic freedoms in Wisconsin. Evers has recently vetoed several bills from the Republican-controlled Legislature that aimed at restricting abortion further.

"I will continue to fight any effort that takes away Wisconsinites' reproductive freedom or makes reproductive health care, whether birth control, abortion, IVF, or fertility treatments, any less accessible in Wisconsin that it is today," Evers said. "That is a promise."

Pregnant people in Wisconsin continue to face several roadblocks when seeking abortion care, including a lack of available providers, mandatory waiting periods and counseling and parental consent laws.

Attorney General Urmanski could not be immediately reached for comment.

Source: Courthouse News Service