Fact check: Harris wrong that Republican lawmakers reinstated 1849 abortion ban

This item was updated after it was published to reflect a comment from Vice President Harris' staff. The rating has not been changed.

Vice President Kamala Harris paid a visit to Waukesha County on Jan. 22, 2024 — the 51st anniversary of Roe v. Wade, the landmark abortion decision that was overturned by the U.S. Supreme Court in 2022.

Harris spoke of “extremists” who have since proposed and passed laws that would “criminalize doctors and punish women” providing or receiving abortions.

She specifically took aim at Republican lawmakers in Wisconsin, who – shortly after Harris made her remarks – held a public hearing in the state Capitol on a new proposal to ban abortions after 14 weeks.

But something Harris said about the history of the matter caught our attention:

“In this beautiful state of Wisconsin, after Roe was dismantled, extremists evoked a law from 1849 to stop abortion in this state,” she said.

After the Supreme Court decision, Planned Parenthood and major health systems stopped providing abortion services, citing the reversal to a “a 173-year-old state law.”

But is Harris right that state lawmakers had a hand in putting that ban back into effect?

In short, no.

Let’s take a look.

Overturning of Roe v. Wade effectively put 1849 ban back in place

When the U.S. Supreme Court ruled that Americans no longer have a constitutional right to an abortion, it “effectively put back into place the state's original abortion law,” the Milwaukee Journal Sentinel reported at the time.

Attorneys for supporters and opponents of abortion access had long acknowledged that overturning Roe would put back into effect the 1849 ban.

Still, there was immediate legal uncertainty and challenges.

Rick Esenberg, president and general counsel for the conservative Wisconsin Institute for Law & Liberty, said he believed the 1849 law was in effect because lawmakers never repealed it.

Gov. Tony Evers and Attorney General Josh Kaul, both Democrats, sued over the 1849 ban, arguing it was unenforceable because it conflicts with measures that state lawmakers had passed in subsequent years.

A December 2023 ruling in that case said the ban applied to feticide, not abortions, and put back in place laws that allow abortions in Wisconsin up to 20 weeks.

The case was appealed and is expected to reach the state Supreme Court.

So, there were some questions over whether the law still stood, and whether it was enforceable – and the situation could change again, pending what higher courts could do.

But one thing is clear: Contrary to what Harris said, Republican lawmakers didn’t have to lift a finger to put the 1849 provisions back into effect. That happened on its own.

In contrast, other states had passed so-called “trigger” laws — abortion-banning bills, approved in the past, that would take effect if Roe v. Wade was ever overturned. That included Idaho, Oklahoma, Tennessee and Texas.

Wisconsin did not have a “trigger” law, though the effect was the same, we previously reported.

Republican lawmakers in Wisconsin have, however, proposed more restrictions on abortions since then, including the 14-week ban announced before her visit.

PolitiFact Wisconsin didn’t hear back from Harris’ office until after this fact-check published.

However, her office later said that she used the term “extremists” to refer to elected officials in general “who used the fear of the law to stop abortion services until a judge clarified it.”

But later in the speech she used "extremists" to directly point to Republicans, saying: “this afternoon in the Wisconsin Legislature, extremists will hold a hearing” on a 14-week abortion ban.

The new information does not change our ruling.

Our ruling

In remarks in Big Bend, Wisconsin, Vice President Kamala Harris said that “after Roe was dismantled, extremists evoked a law from 1849 to stop abortion in this state.”

After the decision, the defunct 1849 ban went back into effect, and has since been the subject of lawsuits.

Republican lawmakers in Wisconsin didn’t play a role in reinstating that ban, though they have proposed other measures that would tighten abortion access.

We rate her claim False.

Sources

Milwaukee Journal Sentinel, Kamala Harris puts abortion at center of presidential race during suburban Milwaukee rally, Jan. 22, 2024

Milwaukee Journal Sentinel, Wisconsin Republican lawmakers introduce 14-week abortion ban. Evers promises veto., Jan. 19, 2024

Milwaukee Journal Sentinel, Roe decision means an immediate halt to abortion in Wisconsin, setting the stage for the state's 1849 ban to take effect, June 24, 2023

Milwaukee Journal Sentinel, Wisconsin's 1849 abortion law goes before the courts next week. Here's what happens if it is overturned., April 26, 2023

USA TODAY, Abortion 'trigger' bans to take effect in multiple states this week. What do they change?, Aug. 25, 2022

Milwaukee Journal Sentinel, Is abortion legal in Wisconsin? Here's how the overturning of Roe v. Wade affects Wisconsin abortion laws, July 13, 2022

This article originally appeared on Milwaukee Journal Sentinel: Harris wrong that Republican lawmakers reinstated 1849 abortion ban