When the U.S. Supreme Court voted in 2022 to overturn its ruling on Roe v. Wade—stripping federal protections for abortion access and leaving the question of abortion up to state governments for the first time in forty-nine years—it shattered what had previously been a single, unified legal precedent into a jumble of different state-level standards. In the absence of federal precedent, each state had to decide for itself whether and how to codify abortion access into state law, devastating millions of women in Republican-controlled states that have since restricted or fully eradicated abortion access.
While most historically blue states have already passed legislation protecting abortion access, many red and swing states have become central battlegrounds in the shifting landscape of abortion access nationwide. Montana has remained a conservative stronghold for decades, but Roe’s reversal revealed shifting values in the state. While many Republican-led states enforced trigger bans that went into effect immediately post-Roe, Montana’s constitutional right to privacy—ruled in 1999 to protect abortion access pre-fetal viability—kept abortion legal. But while Republican lawmakers and lobbyists have made continual efforts to attack reproductive rights, anti-choice policymakers have faced challenging hurdles due to the state’s unique legal precedent and continuous resistance from voters.
Long before the Dobbs v. Jackson Women’s Health Organization decision overturned Roe, leaders in red states were finding ways to restrict abortion access in their states within legal bounds. In 2013, the Republican-led Montana state legislature passed House Bill 521, also known as the Parental Consent for Abortion Act of 2013, which required minors to secure parental consent in order to obtain an abortion. Planned Parenthood immediately sued Montana in response, successfully ensnaring the new law in litigation for eleven years before the Montana Supreme Court unanimously deemed HB 521 unconstitutional in August 2024. Two months later, on November 6, Montana voters approved a public referendum codifying the right to abortion access up until fetal viability in the state constitution, with exceptions post-fetal viability for pregnancies that endanger the mother’s health or life.
Shortly afterward, Montana Attorney General Austin Knudsen appealed the Montana Supreme Court’s decision on HB 521 in a last-ditch effort to elevate the case to the federal courts. In a filing to the U.S. Supreme Court, Knudsen stated that HB 521 was protected by the U.S. Constitution’s Fourteenth Amendment’s due process protection, which, according to a previous Supreme Court ruling, “gives parents a fundamental interest in the ‘care, custody, and control’ of their children.” This interest, Knudsen claimed, extends to medical decisions made by minors, including abortions.
However, in July 2025—twelve years after the legal battle over the Montana legislation began—the U.S. Supreme Court declined to hear the State of Montana’s bid to revive HB 521, leaving the state supreme court’s decision on the matter intact, and confirming that abortion access up until fetal viability will remain unrestricted. Conservative Justice Samuel Alito, joined by Justice Clarence Thomas, issued a statement deeming the litigation a “poor vehicle” for deciding the question of whether a parent’s right to know and participate in their minor child’s medical care extends to abortion access. The justices noted, however, that the Supreme Court’s refusal to review the case is not itself a “rejection” of Knudsen’s argument, leaving room for speculation that the court may agree to hear similar disputes in the future.
While the fight to enshrine abortion access in Montana’s state constitution was arduous, the state’s clear legal precedent gave pro-choice advocates a pathway to defending abortion access. But in Wisconsin, abortion advocates were not so lucky. On July 2, one day before the U.S. Supreme Court declined to rule on Planned Parenthood of Montana v. State, the Wisconsin Supreme Court ruled 4 to 3 that statute 940.04, an archaic nineteenth-century law used to prohibit abortion, was invalidated by more recent superseding legislation. The ruling was cause for celebration among reproductive choice advocates in Wisconsin, which has been home to a murky legal battleground on abortion access since the reversal of Roe led health care providers to fear that they could be prosecuted under statute 940.04.
The Badger State’s complicated history with abortion legislation began in 1849, when statute 940.04 criminalized feticide with harsh penalties for the purposeful killing of a fetus whose movements can be detected by the mother, which was historically referred to as a “quickened” fetus or “quick child.” Section 11 of the statute labels the destruction of such a fetus by anyone except for the mother as second-degree manslaughter, with an exception for cases in which the mother’s health is deemed to be at risk.
This language has been interpreted to specifically criminalize forcing non-consensual abortion or miscarriage on an unknowing or incapacitated mother in cases of abuse or assault—and only in the case of a quickened fetus, which typically occurs between sixteen and twenty weeks of gestation. But in 1858, Wisconsin legislators rewrote 940.04 to no longer specify that the law pertained only to “quickened” fetuses, so as to effectively criminalize abortion at any state of gestation. Simultaneously, the penalty for providing an abortion to a pregnant woman was reduced from a four to seven year prison sentence down to three months to a year, or a fine of up to $500 (equivalent to nearly $20,000 today). Alarmingly, legislators also established that women who “attempt to procure a miscarriage” could be sentenced to up to six months in jail, or a fine of up to $300 (just less than $12,000 today). For the first time in Wisconsin history, women could be prosecuted for obtaining an abortion.
More than a century later, Roe’s passage in 1973 rendered statute 940.04 unconstitutional. Still, Wisconsin legislators passed another statute in 1985 to decriminalize obtaining an abortion—a law which has protected abortion seekers since Roe’s reversal. But because this statute only protects patients who obtain an abortion, abortion providers in the state could still be subjected to prosecution under 940.04. The most recent statute regarding reproductive rights in the state of Wisconsin—and the most enforceable—is statute 253.107, a law passed in 2015 as a trigger ban should Roe be repealed, which essentially bans abortions at twenty weeks after estimated conception.
After Roe was overturned in 2022, anti-choice Republican lawmakers and prosecutors deferred to the 1849 law, ignoring this more recently passed legislation in favor of statute 940.04, which they interpreted as a near-total abortion ban. Even though patients that obtained an abortion were protected by existing legislation, abortion providers, such as Planned Parenthood Wisconsin, were left unprotected and could still be sued for their services. As such, all abortion providers briefly ceased operations in Wisconsin, fearing legal repercussions. Immediately after the Dobbs decision, Wisconsin Attorney General Josh Kaul sued to bypass statute 940.04, claiming it had been superseded by more recent legislation and is therefore unenforceable.
For over a year, virtually no abortions could be legally obtained in the state as residents waited for a verdict, when, finally, in July 2023, Dane County Judge Diane Schlipper ruled in Kaul’s favor and abortion provision quickly resumed. In her decision, Judge Schlipper agrees that because statute 940.04 uses the word “feticide” rather than “abortion,” it distinguishes between consensual abortion and cases of assault or battery, and therefore cannot be applied to consensual abortions.
Judge Schlipper’s 2023 decision was quickly appealed and brought before the Wisconsin Supreme Court, which ruled 4-3 on July 2 that statute 940.04 is unconstitutional given the existence of newer, more specific state laws. All members of the Wisconsin Supreme Court ruled along their party lines, which, for the first time in decades, became majority liberal in 2023—with four liberal and three conservative judges. This changing political landscape, like that in Montana, brings forth new hope for Democrats in historically conservative and swing states that public opinion may be inching further to the left.