Experts and Historians Agree that Wisconsin's Abortion Ban Didn't Prevent Abortions From Taking Place

Wednesday, August 9th, 2023 -- 12:00 PM

(By Hope Kirwan and Brady Carlson, Wisconsin Public Radio) Over the last year, access to abortion in Wisconsin has been almost nonexistent. 

According to Hope Kirwan and Brady Carlson with Wisconsin Public Radio, the U.S. Supreme Court's decision to overturn the landmark Roe v. Wade ruling returned the state to a law that bans the procedure in nearly all cases.

Wisconsin Attorney General Josh Kaul has filed a lawsuit in state court, arguing the abortion ban that dates back to 1849 is too old to be enforceable. Until that case is heard, doctors and health care systems have been cautious not to provide care that's now considered illegal.

But some historians and legal experts agree that the law likely didn't prevent abortions from taking place the first time it was in effect. Marquette University Law School professor Lisa A. Mazzie told WPR "the law on the books and the law on the ground are sometimes two different things."

"The way that people operate in light of the law is also very interesting," Mazzie added. "So we know that since 1849, there was a law that prohibited abortion, and we know still, women were obtaining abortions and doctors were providing them."

A researcher at the University of Wisconsin-Madison surveyed available county court records from 1849 to 1900 and found prosecutors brought criminal charges under the abortion law 17 times. Of those, only five ended in guilty verdicts. 

Mazzie said a prosecutor's views on abortion could have definitely influenced whether they wanted to bring a case to trial. But she added there was a simpler explanation as to why law enforcement didn't often pursue them.

"That procedure is inherently a very private, personal one," Mazzie said. "So in order to find out that it has happened, you need people to tell law enforcement, to tell somebody that a potential crime has occurred."

If everyone involved kept the procedure to themselves, law enforcement would likely never know that it happened at all. The cases that were brought under the state's abortion law were often ones in which a pregnant person died.

Feel free to contact us with questions and/or comments.