The preliminary ruling on the law, passed long before Roe v. Wade, gave hope to abortion-rights supporters who want to restore access to the procedure.
Abortion-rights supporters in Wisconsin secured an incremental but important legal victory on Friday when a judge allowed a lawsuit seeking to restore abortion access in the state to proceed.
The case, which centers on a law passed in 1849 that has been seen as banning abortion, could eventually end up at the State Supreme Court. Liberal justices will be in the majority on that court starting next month after winning a contentious judicial election this year that focused largely on abortion.
In 2022, after the U.S. Supreme Court eliminated the national right to abortion, clinics stopped providing abortions in Wisconsin, a closely divided state where Republicans control the Legislature and a Democrat holds the governorship.
Though Democrats have argued that the 1849 law should no longer be seen as barring women from obtaining abortions, others, including county prosecutors, have publicly disagreed, creating an unsettled legal landscape in which doctors providing abortions could face felony charges.
In her preliminary ruling on Friday that allowed the case to advance, Judge Diane Schlipper indicated that she did not believe that doctors could be prosecuted for performing consensual abortions before a fetus reached viability. She wrote that “there is no such thing as an ‘1849 abortion ban’ in Wisconsin.”
The decision by Judge Schlipper, of the Circuit Court in Dane County, gave credence to the legal arguments used by abortion-rights supporters and kept open a judicial path to restore abortion access. But the immediate effect of her decision was limited, and the final say on the case is widely expected to come from a higher court.
“Today’s ruling is a major victory in our fight to restore reproductive freedom in Wisconsin,” said Attorney General Josh Kaul, a Democrat who brought the lawsuit challenging the measure, in a statement. “While this ruling does not resolve the case and won’t be the final word in this litigation,” he said, it made clear that the law “should not be interpreted to criminalize consensual abortions.”
The ruling on Friday stemmed from a request by Joel Urmanski, the district attorney in Sheboygan County and a defendant in the lawsuit, to dismiss the case. Mr. Urmanski, a Republican, had previously indicated to local reporters that he would be open to prosecuting abortion providers under the 1849 law if a case was presented to his office.
Mr. Urmanski said in an email on Friday that he was in court and had not yet reviewed the ruling. He declined to comment further. Two lawyers representing him in the case did not immediately respond to emails seeking comment.
Heather Weininger, the executive director of Wisconsin Right to Life, said in a statement that the ruling was “a devastating setback in our ongoing fight to protect Wisconsin’s pre-born children.”
Abortion in Wisconsin has been a defining issue in recent campaigns, with both Mr. Kaul and Gov. Tony Evers, a Democrat, noting their support for abortion rights during successful re-election campaigns last year. But because Republicans have large majorities in the Legislature, in part because of gerrymandered districts, there is no immediate legislative path to repeal the 1849 measure or pass abortion protections.
That has shifted attention to the judiciary, where conservatives were defending a one-seat majority on the State Supreme Court this year. In a spring election, a liberal jurist, Janet Protasiewicz, focused her campaign on her support for abortion rights. She won, meaning that the court’s liberal bloc will have a slim majority next month after she is sworn in.
If the lawsuit that Judge Schlipper ruled on Friday ever makes its way to the Wisconsin Supreme Court, Judge Protasiewicz could be the deciding vote.