MADISON, Wis. — The Wisconsin Supreme Court will hear oral arguments Monday on whether a law lawmakers passed more than a decade before the Civil War bans abortion and can still be enforced.

Abortion rights supporters have an excellent chance of winning, given that the liberal justice controls the court and one of them noted on the campaign trail that she supports abortion rights. Monday’s arguments are little more than a formality before a ruling, which is expected to take weeks.

Wisconsin lawmakers passed the state’s first abortion ban in 1849. This law stated that anyone who killed a fetus, unless the act was to save the life of the mother, was guilty of manslaughter. Legislators passed statutes about a decade later that prohibited a woman from attempting to obtain her own miscarriage. In the 1950s, lawmakers revised the law’s language to make it a felony to kill an unborn child, or kill the mother with the intent to destroy the unborn child. The reviews allowed one doctor, in consultation with two other doctors, to perform an abortion to save the mother’s life.

The U.S. Supreme Court’s 1973 Roe v. Wade decision, which legalized abortion nationwide, overturned Wisconsin’s ban, but lawmakers never repealed it. When the Supreme Court overturned Roe two years ago, conservatives argued that Wisconsin’s ban was again enforceable.

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

Sheboygan County District Attorney Joel Urmanski, a Republican, argues that the 1849 ban should be enforced. He claims that it was never repealed and that it can coexist with the 1985 law because that law did not legalize abortion at any point. Other modern abortion restrictions also do not legalize the practice, he argues.

Dane County Circuit Judge Diane Schlipper ruled last year that the old ban prohibited 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 proceedings after Roe was overturned.

Urmanski asked the state Supreme Court in February to to overturn Schlipper’s decision without waiting for the lower appellate courts to rule first. The court agreed to take the case in July.

Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the state Supreme Court to rule directly on if there is a constitutional right to abortion in the state. The court agreed in July to take that case as well. The justices have not yet scheduled oral arguments.

Convincing the court’s liberal majority to uphold the ban seems nearly impossible. Liberal Justice Janet Protasiewicz openly stated during her campaign that she supports abortion rights, a major departure for a judicial candidate. Usually, such candidates refrain from talking about their personal opinions to avoid the appearance of bias.

The court’s three conservative justices accused liberals of playing politics with abortion.