Trump declines to weigh in on Wisconsin's 1849 abortion law under court challenge

WAUKESHA – Former President Donald Trump on Wednesday declined to weigh in on whether the Wisconsin Supreme Court should uphold a lower court's ruling restoring abortion access in Wisconsin and highlighted his role in the overturning of the landmark Roe v. Wade U.S. Supreme Court decision.

In an interview with the Milwaukee Journal Sentinel, Trump said the matter should be decided by "the state" and declined to take a position on whether Wisconsin's highest court should uphold a Dane County Circuit Court judge's ruling that made abortion legal in Wisconsin. The judge declared a 19th Century state law outlawing abortion did not apply to consensual procedures.

"It's up to the state — what the state wants to do," Trump told the Journal Sentinel. "For years, they fought to get it back to the states. I was able to do that."

The 2022 Supreme Court ruling to overturn Roe v. Wade revived a dormant Civil War-era state law that banned abortions in Wisconsin in every situation except when the mother would die without one. But in December, a Dane County judge ruled the law did not apply to consensual abortions.

Abortions were suspended for a total of 15 months in between the U.S. Supreme Court ruling and the Dane County ruling.

Still, the issue of abortion remains politically salient in Wisconsin, a state that could prove to be the tipping point in the November election.

Democrats since 2022 won two of the last three major statewide races running largely on abortion — reelecting Tony Evers to the governorship and later flipping the state Supreme Court into liberal control for the first time in 15 years.

Trump appointed conservative justices to the U.S. Supreme Court who helped write the 2022 ruling that overturned Roe v. Wade and has since sent mixed messages over whether he supports the effects of the ruling —both taking credit for the ruling but also distancing himself from states' decisions to enact strict rules.

"It's now up to the states so we did something that everybody, and all legal scholars, wanted," Trump said Wednesday before a rally in Waukesha.

Attorney General Josh Kaul and Evers, both Democrats, filed the Wisconsin lawsuit shortly after the U.S. Supreme Court overturned its 1973 Roe v. Wade decision, which had legalized abortion nationwide. The court's June 2022 ruling in Dobbs v. Jackson Women's Health Care effectively put back into place the state's original abortion law.

In December, Dane County Circuit Judge Diane Schlipper ruled that an 1849 law that had been interpreted as banning abortion actually applies to feticide.

With the 1849 statute no longer in effect, Wisconsin returned to its previous abortion laws, which ban abortion after 20 weeks of pregnancy. Women are also required to undergo an ultrasound before an abortion, along with a counseling appointment and a 24-hour waiting period.

Whether the 1849 law is enforceable is at issue in the Kaul and Evers lawsuit before the state Supreme Court.

Alison Dirr and Molly Beck can be reached at adirr@jrn.com and molly.beck@jrn.com.

This article originally appeared on Milwaukee Journal Sentinel: Trump declines to weigh in on 1849 Wisconsin abortion law court case