Last week, the Wisconsin Supreme Court heard oral arguments in one of a pair of cases that will determine access to abortion in the state. The case also illuminates how feticide laws, which are on the books in the vast majority of states, can be transformed into abortion bans by conservative prosecutors and courts.

The Wisconsin case centers on an 1849 law that dictates that “any person, other than the mother, who intentionally takes the life of an unborn child” is guilty of a felony unless a life exception applies. When the Supreme Court overruled Roe in 2022, Wisconsin Attorney General Josh Kaul asked the state courts to clarify that this law was not an abortion ban but a feticide law—and thus did not apply to consensual abortions. Indeed, that’s what the Wisconsin Supreme Court had suggested in a previous case in 1994. A conservative county prosecutor, Joel Urmanski, countered that Wisconsin’s law was in fact an abortion ban that applied throughout pregnancy—and that none of the many abortion restrictions the state has passed over the years implicitly repealed the 1849 ban.

A trial judge bought Kaul’s argument, and now the case is before the Wisconsin Supreme Court, which has a new liberal majority since the 2022 election of Justice Janet Protasiewicz. The court also agreed to hear a separate challenge to the constitutionality of the 1849 law. Both lawsuits underscore the importance of the upcoming Wisconsin Supreme Court election in 2025, which could hand conservatives a majority on the court again.

If the court is going to weigh in separately on the statute’s constitutionality, then the question of whether an 1849 zombie law is a feticide statute or an abortion prohibition may seem like a meaningless technicality, but the opposite is true.

Feticide laws, which are on the books in well over one-third of the states, are being used against women and other patients to criminalize a variety of pregnancy-related conduct. A story from Nevada, recently reported in the Washington Post,........

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