Wisconsinites had more (legal) abortion access in 1849 than now

Note for readers: I have not been publishing as much the past few months—the burnout was real. I’ve been doing a lot of resting and reflecting and am feeling more inspired and energized going into 2025.

The week before Thanksgiving, the Wisconsin Supreme Court heard arguments in Kaul v. Urmanski. Wisconsin Attorney General Josh Kaul has intervened in the case—initially a dispute between Planned Parenthood of Wisconsin and right-wing Sheboygan County District Attorney Joel Urmanski—to argue that Wisconsin’s abortion ban does not actually ban abortion.

News outlet after news outlet referred to the law under scrutiny as the “1849” or “175-year-old” abortion law. A notable exception was Wisconsin Public Radio, which in September 2023 published a series digging into the details of Wisconsin’s abortion law. It instead refers to the law as a 19th Century, or Pre-Civil War abortion law. I’m sure the reporters involved must feel a nagging irritation whenever they see “1849 abortion ban.” I know I do, and not just because I published a similar story for Belt in July 2022, or because I spent hours unfurling thick paper scrolls documenting legislative changes in 1858. (An archivist joked that I was probably the first person to unfurl them since then).

The continuation of that shorthand and the way it’s used in rhetoric is a symptom of a poor understanding of history. Depending on your political persuasion, the past is either nostalgic or backwards. We either need to go back to our roots, or we refuse to go back to a more oppressive time. The assumption that progress—as defined by the left—moves linearly into the present not only leads to gross misunderstandings of how we got to where we are, but it also means that we miss so many cautionary tales relevant to our present.

In 1849, Wisconsinites had greater legal access to abortion than they do today. Medical access is quite a different story—we are talking pre-Civil War, pre-germ theory, and long before the discovery of penicillin, so from a medical standpoint, attempting an abortion was a risky endeavor. But legally, Wisconsin’s abortion law (which was modeled off of many similar laws at the time) says that someone can be charged with manslaughter if they provide any drug or treatment to a pregnant person, which aborts a “quick” child, meaning a fetus that is moving in the womb.

Proving a pregnancy, much less that a fetus was “quick,” would have presented a tough obstacle for prosecutors at the time. Before ultrasounds, it was nearly impossible to know if someone was pregnant, much less what was happening in any given pregnancy in the early stages. The pragmatic legal solution was to draw the line at “quickening,” which was when the fetus would begin to move, which typically doesn’t happen until the second trimester of a pregnancy. If someone were charged with providing an abortion, there would be very few people qualified to testify in a court of law whether a fetus was “quick.” The most qualified person would be the pregnant person and the person who performed the abortion. The same lack of medical knowledge and technology that made abortion very risky, also gave pregnant people and abortion providers a lot more legal leeway.

(Technological advancement is also a risk to people seeking abortions today, as our pervasive surveillance ecosystem, hand-in-glove with policing, is being weaponized against abortion seekers and those who try to help them.)

In 1858, Wisconsin’s abortion law was amended to remove the word “quick.” That amendment is the basis for our current outright ban on abortion.

The 1858 amendment was part of a wave of anti-abortion legislation pioneered by—counterintuitively, for us in the present—doctors, in hand with a movement to professionalize medicine. Given the state of medical training and practice at that time, professionalization sounds like it would lead to progress, and it probably did lead to better conditions and treatments across the country. But another goal of medical professionalisation was displacing midwives. Midwives were primarily women who did not receive professional medical training and often provided contraception and abortion services. And since women were not allowed to access the professional medical training now required, they were being pushed out of medicine altogether. In the last decade we’ve seen a resurgence in midwifery and doulas to counter the negative birth outcomes caused by sexism in medical institutions and practitioners; imagine the medical sexism of an era where women did not have voting or property rights, much less medical autonomy.

The anti-abortion movement at that time also did not trust women to make decisions about their own fertility. As medical training improved and frontier doctors had more access to resources, “quickening” no longer seemed like a hard line between pregnant and not-, but part of the gradual development of a fetus. Concerns about abortion on the basis of religious beliefs fluctuate over time—as recently as the 1970s, Evangelical Christians were not unilaterally opposed to abortion and were not organizing politically on the issue. In the Pre-Civil War era, as in the mid-20th century, it was the Catholic Church that strictly forbade both abortion and contraception. The Protestant-led clampdown on abortion access was in part prompted by declining birth rates and a sentiment among Protestants that the “wrong kind of people” (Catholics) were having large families. It’s a precursor to the eugenics movement, which was deeply concerned about whether the “right” people were having babies, and making invasive steps—including forced abortions and hysterectomies—to insure the “wrong” people were not.

What’s important to remember about history, particularly the ugliest movements in history, is that well-intended movements and decisions divorced from the people impacted almost always cause unintended harm. Don’t get me wrong—just like the present, there were terrible opportunists seeking power who knew the consequences and barrelled ahead anyway. But there were probably a lot more people who thought that what they were doing was progress—in some ways, standardizing and enforcing medical training should be progress. But that progress was tainted by unexamined racism (remember that Catholics at that time were not considered white) and sexism. Actual progress cannot be made without examining our nation’s racist and sexist foundations, and allowing all stakeholders to have agency in the process.

When people of power and privilege reshape the world for their comfort without taking others into account, the consequences are often destructive, deadly, and unfortunately, long-lasting.

Knowing that history, a December 2023 ruling from Dane County Circuit Court Judge Diane Schlipper is concerning. Schlipper ruled that Wisconsin's 19th-century abortion law does not ban abortion. Instead, she reasoned that the law bans feticide, basing her decision on the 1994 case Wisconsin v. Glenndale Black, where the defendant attacked his pregnant wife and caused her to miscarry. I’m not a lawyer, but that case seems like an expansion of the law, not an example of its original intent. We know its original intent from the historical record, and it was to ban abortion.

Some may say, “who cares as long as people can access the healthcare they need?” And I understand that completely. But keeping this law on the books, while claiming that it's not an abortion ban, still makes abortion access tenuous. Kaul's argument is based on a legal technicality—that the 1858 law contradicts laws that were passed after Roe v. Wade, and is therefore unenforceable. However, Planned Parenthood has another lawsuit arguing that an abortion ban “violates the person’s inherent right to life and liberty guaranteed by Article 1, Section 1 of the Wisconsin Constitution, by unconstitutionally interfering with a person’s right to bodily integrity, autonomy, and self-determination.” That is a solid foundation for safeguarding abortion rights through the courts. Not the right to privacy, or a legal technicality, or a misinterpretation of the intention of an abortion ban, but a legal recognition that the decision whether to continue a pregnancy should only reside in the person whose body will be directly impacted by that pregnancy. As Jenny Higgins, a reproductive health researcher at UW-Madison, told me in 2022, many areas of Wisconsin—particularly rural and low-income—did not have access to abortion care before Dobbs v. Jackson due to restrictions passed under former Gov. Scott Walker.

Bodily autonomy itself has wider implications, such as securing healthcare access for trans people, for example.

Legal recognition of bodily autonomy would also provide a firm foundation for moving beyond abortion access to actual reproductive justice, a holistic, intersectional framework for examining all the factors that go into people’s family planning decisions. It’s not enough to legalize abortion. Abortion needs to be accessible to everyone, regardless of their financial and life circumstances. Reproductive justice also encompasses the right to choose sterilization, birth control, or to have a child. And if someone has a child, reproductive justice includes the right to raise that child in a safe environment. We could move beyond battles over abortion, and instead be building a future where people have access to the healthcare they need so they can have the families they want.