A conservative attorney for the district attorney on Monday sought to convince the Wisconsin Supreme Court to revive the 175-year-old abortion ban, drawing a scuffle from two of the court’s liberal justices during oral arguments.

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

Monday’s two-hour session was little more than political theater. Liberal Justice Rebecca Dallet told Urmanski’s lawyer, Matthew Thome, that the ban was put in place in 1849 by white men who held all the power and that it ignores everything that has happened since then. Jill Karofsky, another liberal justice, pointed out that the ban has no exceptions for rape or incest, and that reinstating it could lead to doctors withholding medical care. She told Thome that he was essentially asking the court to sign a “death warrant” for the women and children of Wisconsin.

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“It’s a crazy world,” Karofsky said.

The ban lasted until 1973, when the US Supreme Court’s landmark Roe v. Wade decision, which legalized abortion nationwide, overturned it. Lawmakers never repealed the ban, and conservatives argued that the Supreme Court’s decision to overturn Roe two years ago revived it.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 a fetus can survive outside the womb supersedes the ban. Some babies can survive with medical help after 21 weeks of gestation.

Urmanski argues that the ban was never repealed and can coexist with the 1985 law because that law did not legalize abortion at any point.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 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.

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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 shocking. He also argued that the ban and the new abortion restrictions could overlap, as could laws setting 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 didn’t repeal, and you say, no, you actually repealed it,” he said.

Dallet responded that disregarding laws passed in the last 40 years to go back to 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 have agreed to take the case, but have not yet scheduled oral arguments.