Wisconsin abortion laws: What to know after Arizona ruling

The Arizona Supreme Court on Tuesday ruled an abortion ban from 1864 — before Arizona became a state — could be enforced. That means abortions in Arizona will be illegal in almost all cases, except to save the life of the mother.

An abortion ban from the mid-1800s probably sounds familiar to Wisconsinites. A state law from 1849 is also the subject of a lawsuit over abortion access in Wisconsin, which has been appealed to the state Supreme Court.

The Wisconsin Supreme Court has a liberal majority, meaning it's likely to uphold a lower court's ruling that said the 1849 law applies to feticide, not consensual abortions. In other words, the Wisconsin court wouldn't ban abortion.

But if it overturns it, that could again stop abortions from being offered in Wisconsin. Providers began resuming abortions in Wisconsin in September after a Dane County judge signaled the 1849 law didn't apply to abortions.

Here's a breakdown of the Arizona and Wisconsin laws, the latest on the legal challenge in Wisconsin and how presidential campaigns are responding to state abortion bans:

How old are the Arizona and Wisconsin laws, and what do they say?

Arizona's law was codified decades before Arizona officially became a state. It first appeared in the 1864 Howell Code, a book of laws compiled by Arizona's First Territorial Legislature.

The law was enforced until the Roe v. Wade decision in 1973, which was struck down in 2022. The Dobbs decision led Republicans to ask the courts to lift the hold from 1973 and allow police and prosecutors to begin enforcing the 1864 law again.

"A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years," the law says.

The Wisconsin law is from 1849, less than a year after Wisconsin reached statehood. When Roe was overturned, the state ban went back into effect, but has been the subject of legal challenges.

The law classifies the "willful killing of an unborn quick child" as manslaughter. It also says anyone who provides a medicine, drug or other substance or uses an "instrument or other means" with "intent" to destroy a "quick child" could face a manslaughter charge if the fetus or pregnant woman dies, unless the action was needed to try to save the woman's life.

At that time, quickening generally meant the first time a woman could feel fetal movement, which typically occurs midway through pregnancy.

PolitiFact: Yes, Wisconsin’s abortion law is older than 20 U.S. states

More: Timeline of abortion rights, lawsuits and access in Wisconsin

Is abortion legal in Wisconsin? What's the latest on the abortion lawsuit?

Right now, abortions are being provided in Wisconsin, but a lawsuit is still pending. A Dane County judge's December ruling was appealed directly to the state Supreme Court, bypassing appeals courts.

That appeal was made in December. There hasn't been any action since then, such as the court saying it will accept the case or schedule oral arguments.

In February, Planned Parenthood of Wisconsin also petitioned the court, asking it to "recognize a constitutional right to bodily autonomy, including abortion."

If the court does take up the case, it's likely to uphold the lower court's ruling. The Wisconsin Supreme Court now has a 4-3 liberal majority with the addition of Justice Janet Protasiewicz, whose campaign focused on restoring abortion access in Wisconsin.

In an interview Tuesday, Democratic Party of Wisconsin chairman Ben Wikler pointed out that the state Supreme Court has frequent turnover. There will be another election for the bench next spring that will again determine the majority of the court, after liberal Justice Ann Walsh Bradley announced Thursday she wouldn't run again.

"It comes down to a very small number of people in a court whose composition changes almost every year," Wikler said. "I think the key thing to underscore is how precarious access to abortion and reproductive health care is."

More: A judge ruled Wisconsin's 1849 law doesn't apply to abortions. Here's what to know.

Arizona could put abortion question on the ballot. Can Wisconsin?

Planned Parenthood and other groups in Arizona are on pace to collect enough signatures to put an abortion measure on the ballot in November. That would allow voters to weigh in on changing the state's constitution to protect abortion access.

Unlike other states, Wisconsin doesn't allow voters to initiate referendum questions for policies like abortion access or marijuana legalization. But Republicans in Wisconsin have supported placing a referendum on the ballot for voters to decide the issue.

Assembly Republicans voted in January to pass a bill asking voters whether Wisconsin should ban abortions after 14 weeks of pregnancy. Republican U.S. Sen. Ron Johnson also pushed a referendum that would ask Wisconsin voters: “At what point does society have the responsibility to protect the life of an unborn child?"

The first proposal deploys a seldom-used process by which a law passed by the Legislature and signed by the governor can be enacted only with voters' approval, and Democratic Gov. Tony Evers opposes the effort. President Joe Biden also slammed that idea during a visit to Wisconsin.

Johnson's suggestion could only be used, under current state law, as a nonbinding vote — one that would measure public opinion but not change the law.

What's the latest on Trump's, Biden's abortion stances?

Presidential candidates' positions on abortion was already in the news this week before the Tuesday ruling in Arizona.

Former President Donald Trump, the presumptive Republican nominee for president, laid out his position on abortion Monday in a video on Truth Social. Trump said abortion restrictions should be left up to the states, and he avoided weighing in on a nationwide ban.

"The states will determine, by vote or by legislation or perhaps both," Trump said. "And whatever they decide must be the law of the land, in this case, the law of the state. Many states will be different."

Democrats quickly piled on, pointing out that Trump has backed a string of state bans and appointed Supreme Court justices that overturned Roe v. Wade. Biden, also the presumptive Democratic nominee, supports restoring Roe.

"The stakes of this election for Wisconsinites are clear: A second Trump term could mean over 1.1 million women across the state would lose access to reproductive health care," said Brianna Johnson, a spokeswoman for the Biden-Harris campaign in Wisconsin.

Abortion has been the focus of recent Biden campaign visits in Wisconsin, including the first lady's March visit to Waukesha, a traditionally Republican county.

The Arizona Republic and USA TODAY contributed to this report.

This article originally appeared on Milwaukee Journal Sentinel: Wisconsin abortion laws: What to know after Arizona ruling