Since at least 1849, it’s been illegal to perform an abortion in Wisconsin. Since 1973, that law has been unenforceable under the U.S. Supreme Court’s decision in Roe v. Wade.
ORIGINALLY PUBLISHED BY THE CAPITAL TIMES, September 10, 2021
Advocates on both sides of the issue agree that, nearly 50 years since the landmark court ruling, Wisconsin has never been closer to once again outlawing abortion — or at least trying.
That’s thanks to a 5-4 Supreme Court decision last week to allow Texas to enforce a law effectively banning the procedure after about six weeks of gestation (at the point when cardiac activity can first be detected by an ultrasound)— and an upcoming ruling on whether to allow a Mississippi law banning it after 15 weeks.
The court’s ruling in Roe v. Wade and its subsequent ruling in Planned Parenthood v. Casey established that a woman has a constitutional right to end a pregnancy before the fetus is viable outside the womb. Allowing the Texas and Mississippi laws — which ban abortions before the fetus is able to survive outside the womb — would effectively undo that precedent.
As long as the state Capitol remains locked in a stalemate between Democratic Gov. Tony Evers and the Republican-led Legislature, Wisconsin’s laws are unlikely to change. But a reversal of Roe v. Wade — or anything close to it — still raises questions about the future of legal abortion in Wisconsin and the viability of the state’s existing ban.
What does Wisconsin’s abortion ban say?
Under Wisconsin’s currently unenforceable ban, any person — other than the mother — who “intentionally destroys the life of an unborn child” is guilty of a class H felony, punishable by up to six years in prison, a fine of up to $10,000, or both. It includes exceptions for an abortion that is deemed medically necessary to save the mother’s life, but does not make exceptions for cases of rape, incest or the mother’s physical or mental health.
The ban was amended in 1985 (post-Roe) to apply penalties to physicians but not to women who seek abortions.
Wisconsin is one of eight states with a pre-Roe abortion ban on the books, in addition to 11 with post-Roe bans intended to take effect if the ruling is overturned.
What would trigger the state’s abortion ban, and who would enforce it?
If Roe v. Wade were to be overturned, the ban would take effect with no additional actions needed. It would be up to local district attorneys to enforce it.
Asked whether the governor or attorney general would attempt to prevent enforcement of the ban, a spokeswoman for the state Department of Justice said the agency “only provides legal opinions in certain specified circumstances.”
“AG (Josh) Kaul believes the state Legislature should act promptly to ensure that access to safe and legal abortion is protected in Wisconsin regardless of what happens in the courts,” said DOJ spokeswoman Samantha Standley.
The governor tweeted after the court’s ruling, “I will always trust women to make decisions about their bodies and their healthcare.”
Aside from the unenforceable ban, what kind of laws does Wisconsin have regulating abortion?
Wisconsin women seeking abortions have been required to participate in a counseling appointment followed by a 24-hour waiting period since 1996, under a law signed by Republican Gov. Tommy Thompson.
In 2012, Republican Gov. Scott Walker signed a law banning telemedicine abortions — a practice by which women take the required doses for a medication abortion at home, with support from a doctor by webcam — and implementing additional measures designed to ensure women seeking abortions are not coerced. The law requires the pills for a medication abortion be given to a woman by the same doctor she sees for her state-mandated counseling appointment.
The following year, Walker signed a bill requiring women to undergo an ultrasound before having an abortion. Women are read a script describing what is on the screen and given the option of viewing it. The same law also included a requirement, later blocked by the U.S. Supreme Court, that abortion providers have admitting privileges at a hospital near their clinic. Two years later, Walker signed a bill banning abortions 20 weeks after probable fertilization.
Are there any current legal challenges to Wisconsin’s abortion regulations? Will the Texas ruling affect that?
Planned Parenthood is currently suing to allow advanced practice nurses — like nurse practitioners and nurse-midwives — to administer abortion-inducing medication, and to allow women to take the medication at home via telephone or video consultation with their health care provider. The Texas ruling will not affect that case, said Lester Pines, an attorney representing Planned Parenthood.
Could there be a legal challenge to the state’s abortion ban?
The long list of abortion regulations and restrictions passed in Wisconsin since the Roe v. Wade ruling raises some questions, Pines said.
“In Wisconsin, since 1973, there have been numerous laws that have been passed that regulate abortion — And have specified who may perform abortions, the circumstances under which they are performed, the types of dissuasive steps that the state can take with regards to a woman who seeks an abortion. All of those laws are on the books in addition to this law that says it’s illegal to perform an abortion. That raises a very significant question as to whether or not the Legislature, over time, has implicitly, through these other laws … repealed the law that says it’s a felony.”
In other words, “you can’t say something’s a felony and then pass other laws that say, ‘This is how you do it.’”
If the nation’s high court does indeed overturn Roe v. Wade, that will be a question for the state Supreme Court.
How are anti-abortion advocates in Wisconsin responding to the court’s ruling?
“The heartbeat legislation in Texas is very powerful, because we here at Wisconsin Right to Life believe and know that abortion stops a beating heart, which is such a clear and present sign of life,” said Wisconsin Right to Life legislative director Gracie Skogman.
The organization sees the ruling as a “pro-life victory,” Skogman said, and welcomes the opportunity to discuss similar legislation in Wisconsin.
Even with the knowledge that Evers would almost certainly veto such a bill if it passed the Legislature, Skogman said, introducing it would offer anti-abortion advocates an opportunity to make the case to lawmakers and voters.
“So much of the pro-life movement is working within the framework that we’re given,” Skogman said. “The heart of the pro-life movement … is supporting women, especially those who have been told abortion is their only option.”
In addition to a “heartbeat bill,” Skogman said, the organization hopes to work on legislation “aimed at supporting women — providing them with education and resources, and transparency regarding the abortion process.”
What about abortion rights advocates?
“By allowing this law to stand, SCOTUS has sent a clear message that women and pregnant people are no longer full citizens entitled to bodily autonomy or medical privacy,” said state Sen. Kelda Roys, D-Madison, a former executive director of NARAL Wisconsin, in a statement. “This terrifying development will have a direct impact on Wisconsinites, because our state still has an archaic 1849 law on the books that criminalizes abortion. If Roe no longer protects Texas women, it will no longer protect Wisconsin women.”
Roys is the co-author, with Rep. Lisa Subeck, D-Madison of legislation that would repeal Wisconsin’s abortion ban.
Planned Parenthood Advocates of Wisconsin executive director Mike Murray argued the court’s decision to review Mississippi’s 15-week abortion ban reinforces the need for that bill.
“Wisconsin already has some of the strictest abortion restrictions in the country, and access to reproductive health care remains out of reach for many in our state,” Murray said in a statement. “We call on our elected leaders to ensure that people in Wisconsin can access abortion care when they need it, regardless of who is on the Supreme Court.”
What does this mean for upcoming elections?
Both sides agree there’s a lot at stake in 2022.
“The issue of whether or not women have a right to make their own medical decisions and a right to privacy is on the ballot in every election from now on,” Pines said. “And it’s going to be a central issue. Because the question really is, are women entitled to be full citizens whose privacy is protected, or is that only afforded men?”
Skogman, of Wisconsin Right to Life, said the organization’s goal is to be active in elections at every level.
“We are in desperate need of leaders nationally, and with our governor, who defend the life of the unborn and tell women they have support and resources when they do choose life for their child,” Skogman said. “We know that our current governor and federal leadership do not protect the life of the unborn and do not provide the support that we would hope for at-risk mothers when they are faced with those choices.”
The first goal for pro-abortion rights voters in Wisconsin should be to reelect Evers, Pines said, characterizing the governor as the “Dutch boy with his finger in the dike.” The same is true for electing another Democrat to the U.S. Senate in 2022, he added.
“People who are concerned about the right to abortion in Wisconsin need to be concerned about two things: one, redistricting, to make sure that there’s not this extreme right-wing Legislature that acts in an authoritarian fashion, and two, who gets elected to the state Supreme Court in 2023,” Pines said.
On the anti-abortion side, Skogman said, “we are really looking for candidates who are unashamed in their support of life and of women, and make that something that’s a very integral part of their campaign — and that we have an assurance is something they will actively fight for when they are hopefully in a position in government.”