The Supreme Court of Wisconsin ruled Wednesday that a 1849 statute that banned nearly all abortions is unenforceable.

The majority held that the state legislature “impliedly repealed” the statute through its comprehensive abortion care legislation over the past 50 years. Justice Rebecca Frank Dallet wrote that the court agreed with plaintiff Attorney General Josh Kaul’s argument that enforcing the 1849 ban would effectively render subsequent legislation meaningless.

“That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion,” wrote Dallet.

The 1849 law allowed authorities to charge individuals who performed abortions with a “Class H” felony, offenders of which were subject to up to six years of incarceration. The law also applied a penalty of up to 15 years of imprisonment for individuals who performed abortions on a “quick child,” an antiquated term for a fetus whose movements can be felt by the mother.

The majority recognized an aversion in the legal community to the doctrine of implied repeal but explained two narrow circumstances when it has been applied in Wisconsin case law. One of those circumstances is “when the legislature adopts comprehensive legislation … that so thoroughly covers the entire subject of the earlier statute that it was clearly meant as a substitute for that earlier law.” The court ruled this is such a case, stating:

We conclude that, under the unique circumstances presented here, the legislature impliedly repealed [the 1849 law]… by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions.

The 4-to-3 decision affirmed the lower court’s holding. Dissenting opinions disagreed with the application of the doctrine of implied repeal. Justice Annette Kingsland Ziegler wrote in her dissent that the legislature should decide the issue, noting:

The Wisconsin Legislature should clarify the statutes in light of Dobbs [the 2021 US Supreme Court decision overturning Roe v. Wade and devolving authority to regulate abortion to the states] and have the debate, testimony, and dialogue that accompanies legislative action. Such legislative action, even if vetoed by the governor, serves the public, shaping public opinion and moving the issue to the fore. Current legislative inaction, however, is no excuse for judicial activism.

Attorney General Josh Kaul sued the District Attorney of Sheboygan County, Wisconsin, in 2022 over the enforceability of the 1849 ban after the US Supreme Court’s reversal of Roe v. Wade.