Following the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the federal constitutional right to abortion in June 2022, Wisconsin’s 1849 law went into effect, and for over a year, it was used to ban abortion in the state.

In December 2023, Dane County Circuit Judge Diane Schlipper ruled that the law pertained to infanticide and not to abortion, but challenges to the law continue through the courts. The state Supreme Court heard oral arguments in November 2024, and a ruling is expected in the coming months.

Where it specifically mentions abortion, the 174-year-old statute provides exceptions for “therapeutic abortion” performed by a physician and deemed necessary “to save the life of the mother.”

Schimel has said he believes that “life begins at conception,” and in a recent debate with Crawford on March 12, when he was asked about the 1849 statute, Schimel said, “It was passed by two Houses of the legislature and signed by a governor. That means it’s a valid law.”

An expert in health care law and a physician told the Wisconsin Independent that the wording of the law is vague and could put patients’ lives in danger.

Richard Davis, a Milwaukee attorney with the firm Quarles and Brady, said that while the law was being enforced as a ban on abortion, he advised his clients to meticulously document every case in which an abortion was required to save the life of the patient.

“The key there is medical documentation, making sure the physician involved in the procedure or ordering the procedure is able to clearly and accurately state why the procedure is necessary to save the life of the mother, and keeping thorough records of that,” Davis told the Wisconsin Independent.

“Just kind of thinking forward from that physician’s perspective, if the state were to try to bring a case here, having that clear documentation of saying, No, this was necessary to save the life of the mother in my medical judgment for X, Y and Z reasons, and the more clearly and effectively they could state that, the lower the liability here is under the statute.”

Davis said that if the 1849 law were to again be interpreted as an abortion statute as opposed to a feticide statute and be enforceable by the high court, his greatest legal concern is a lack of clear parameters guiding physicians in practice.

“From a legal perspective, there’s only so much we can say, this is what the law says, and it really does boil down to the physician’s medical judgment,” Davis said.

Dr. Shefaali Sharma, an obstetrician-gynecologist in Madison, said that she’s concerned that the vague wording of the 1849 statute will result in more maternal deaths.

“When you put in vague wording that scares people in terms of how they practice, and instead of practicing based on the clinical picture in front of them and the science and the data and the evidence and objective standpoints with shared decision-making with the patient after they’ve been counseled, and instead you use fearmongering and political agendas to define what a life is and how on the edge it needs to be before you can intervene to save it, we’re going to see more maternal deaths,” Sharma said..

Sharma said that the 1849 law would devastate the state’s medical system and that patients would seek care from providers outside of the state in crisis situations such as a miscarriage or a desired abortion.

She also said that some physicians might leave the state.

“That means that more women are going to be at risk for complications,” Sharma said. “We’re going to see changes in the quality and the rigor of the training and the caliber of physicians that stay in state, because we’re going to lose those skills, and that’s going to result in so much devastation to the health care of women in the state of Wisconsin.”