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throughout pregnancy—and that none of the many abortion restrictions the state has passed over the years implicitly repealed the 1849 ban.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, illustrates this risk. Patience Frazier, a financially struggling mother of two, had recently found a more stable housing situation after living with her children in her car, when she learned she was pregnant. Abortion was legal in Nevada until 24 weeks, but Frazer didn’t have the money to pay for a procedure or an easy way to get to the nearest clinic, so she decided to take steps to induce miscarriage, consuming large quantities of cinnamon, which she believed would end her pregnancy (as medical experts would later testify, there is no evidence that such a strategy could work).

Several weeks later—according to medical examiners, not long after the 24^th week of pregnancy—Frazier had a miscarriage. A woman who babysat for Frazier told the police that she suspected that Frazier had “gotten rid of her baby.” Jac Mitchum, a police deputy, became convinced of Frazier’s guilt, but because law enforcement weren’t sure they could charge her under the state’s abortion statute, prosecutors turned to a 1911 feticide law governing the consumption of drugs during pregnancy—Frazier had consumed marijuana and methamphetamines during her pregnancy. Frazier was later convicted and sentenced to up to eight years in prison before the Nevada Supreme Court reversed her conviction in 2023, reasoning that she had ineffective assistance from her lawyer at trial. Prosecutors have refused to close the case and are reserving the right to retry her.

In some ways, Frazier’s story seems remarkable. Nevada has protected legal abortion since 1990 and just passed a constitutional amendment on reproductive rights that will become effective after a second vote in 2026. How can prosecutors go after Frazier in a state that theoretically doesn’t criminalize abortion?

The Nevada Supreme Court didn’t weigh in on the constitutionality of the 1911 law, reasoning that their ruling on Frazier’s assistance of counsel claims made it unnecessary to even address the question. So there have been few rulings on the critical question of whether feticide laws can function as abortion bans, criminalizing women who have miscarriages. While the issue in the Nevada case came down to a technicality, policymakers and judges may have been reluctant to clarify feticide laws because they view them differently from abortion bans.

The organization Pregnancy Justice has established that 38 states have feticide laws, which authorize homicide charges against anyone who causes a miscarriage or stillbirth. These laws are on the books in blue as well as red states for a simple reason: In theory, there should be no conflict between protecting access to legal abortion and criminalizing the conduct of those who assault or kill pregnant patients and end their pregnancies without their consent.

But in the aftermath of Roe’s reversal, these laws are being put to different uses.

For the anti-abortion movement, the past 50 years was a struggle to reverse Roe v. Wade. The next chapter is a fight to establish fetal personhood—the idea that the 14^th Amendment of the Constitution recognizes rights to equal protection and due process of the law from the moment of conception. Anti-abortion lawyers argue that a decision recognizing fetal personhood would make liberal state abortion laws or other forms of government support unconstitutional. At least at the moment, the Supreme Court doesn’t appear imminently likely to recognize fetal personhood, and so the anti-abortion movement has developed a long-term plan: writing fetal personhood into as many other areas of law as possible, and reading personhood into old laws, to create a precedent for recognizing constitutional personhood that the high court eventually won’t be able to ignore.

Reinterpreting or expanding feticide laws is part of this strategy. Most already on the books explicitly or implicitly protect pregnant women from prosecution, but in some cases, the protections are incomplete or missing altogether. That’s what Frazier’s case highlights: If states believe that rights and personhood begin at fertilization—and more importantly, if they believe that the only way to honor those rights is to impose harsh criminal punishments against anyone who violates those rights—then prosecutors opposed to abortion will be tempted to repurpose any feticide law to criminalize conduct related to pregnancy. Prosecutors like those in Wisconsin will read a feticide law that may have been intended to protect pregnant women from domestic violence as a law criminalizing the conduct of doctors who provide abortions.

This is why the Wisconsin Supreme Court’s forthcoming decision in Kaul will be consequential even if the justices later rule the law to be unconstitutional. The more abortion opponents equate justice with the criminalization of conduct related to pregnancy, the more important it will be to distinguish feticide and abortion—and to understand how laws that seem to have nothing to do with punishing pregnant women can have a far darker purpose in our post-Roe world.