A conservative prosecutor’s lawyer fought Monday to persuade the Wisconsin Supreme Court to revive the state’s 175-year-old abortion ban, drawing criticism from two of the court’s liberal justices during arguments. oral.

Sheboygan County Republican District Attorney Daniel Urmanski has asked the high court to overturn a Dane County judge’s ruling last year that invalidated the ban. A ruling is not expected for weeks, but abortion advocates will almost certainly win the case given that liberal justices control the court. One of them, Janet Protasiewicz, commented during the election campaign that she supports the right to abortion.

Monday’s two-hour session was little more than political theater. Liberal Justice Rebecca Dallet told Urmanski’s lawyer, Matthew Thome, that prohibition was passed in 1849 by white men who held all the power and that he was ignoring everything that had happened since then. Jill Karofsky, another liberal judge, noted that the ban does not provide exceptions for rape or incest and that reviving it could result in doctors stopping medical care. She told Thome she was essentially asking the court to sign a “death order” for women and children in Wisconsin.

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“This is the world gone crazy,” Karofsky said.

The ban remained in place until 1973, when the historic Roe v. Wade of the U.S. Supreme Court, which legalized abortion nationwide, overturned it. However, lawmakers never repealed the ban, and conservatives have argued that the Supreme Court’s decision to overturn Roe two years ago revived it.

Democratic Attorney General Josh Kaul filed a lawsuit challenging the law in 2022. He argued that a 1985 Wisconsin law allowing abortions before the fetus can survive outside the womb supersedes the ban. Some babies can survive with medical help after 21 weeks of gestation.

Urmanski maintains that the ban was never repealed and that it can coexist with the 1985 law because that law did not legalize abortion at any time. Other modern restrictions on abortion also do not legalize the practice, he argues.

Dane County Circuit Judge Diane Schlipper ruled last year that the ban prohibits feticide, which she defined as the killing of a fetus without the mother’s consent, but not consensual abortions. The ruling encouraged Planned Parenthood to resume offering abortions in Wisconsin after suspending the procedures after Roe was overturned.

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Urmanski asked the state Supreme Court in February to overturn Schlipper’s ruling without waiting for a lower appellate decision.

Thome told the justices Monday that he was not arguing about the implications of reviving the ban. He argued that the legal theory that new laws implicitly repeal old ones is unstable. He also argued that the ban and new restrictions on abortion can overlap, as can laws that establish different penalties for the same crime. A ruling that the 1985 law effectively repealed the ban would be “undemocratic,” Thome added.

“It’s a statute that this Legislature has not repealed and you’re saying, no, they actually repealed it,” he said.

Dallet responded that ignoring the laws passed during the last 40 years until 1849 would be undemocratic.

Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly on whether there is a constitutional right to abortion in the state. The justices agreed to take up the case, but have not yet scheduled oral arguments.