Originally Published by the Wisconsin Institute for Law and Liberty (WILL), January 4, 2022
DAN LENNINGTON, DEPUTY COUNSEL
After nearly 50 years, the sun may finally be setting on the constitutional right to abortion.
On December 1, 2021, the United States Supreme Court heard arguments in Dobbs v. Jackson Women’s Health Organization. In this case, the Court is considering Mississippi’s abortion ban, which prohibits abortion after 15 weeks’ gestation. The law provides an exception for medical emergencies and “severe fetal abnormalities.” A decision is expected by the end of June 2022.
The fact that the Court even took the case is groundbreaking. Since Roe v. Wade in 1973, the Court has recognized a nearly unrestricted constitutional right to abortion. In the 1992 case of Casey v. Planned Parenthood, the Court clarified that before fetal viability (generally accepted as about 24 weeks), a state may not ban abortions—it may only regulate abortions so long as such regulations do not pose an “undue burden” on women. But even after viability, the Court has also recognized a constitutional right to abortion when necessary to protect a mother’s physical, economic, or mental health.
For proponents of abortion rights, the oral argument in Dobbs did not go well. Only three justices—Breyer, Kagan, and Sotomayor—seemed inclined to strike down the 15-week ban. Striking down the ban is the only way for the Court to completely uphold Roe and Casey since these decisions unequivocally prevent states from banning abortion at 15 weeks. There’s really no way around that fact.
On the other hand, five and perhaps six justices seem poised to uphold the ban along the lines of a comment made by Justice Brett Kavanaugh during the oral argument: “The Constitution’s neither pro-life or pro-choice on the question of abortion but leaves the issue for the people of the states or perhaps Congress to resolve in the democratic process.” A decision centering on this theory would eliminate a constitutional right to abortion and return the matter to democratic debate.
Since overturning Roe v. Wade is a real possibility, Wisconsin policymakers and prosecutors should start to consider the obvious next question: what happens in Wisconsin if Roe goes?
A Short History Of Abortion In Wisconsin
For most of Wisconsin’s history, abortion has been illegal. In January 1849, just a few months after statehood, the Wisconsin Legislature adopted a criminal code criminalizing the “willful killing of an unborn quick child” and the use of “any instrument or other means, with the intent to thereby destroy such child.” This law derived from an even earlier Michigan statute that formed the foundation of Wisconsin territorial law.
Wisconsin’s abortion ban persisted for over 120 years with Wisconsin prosecutors charging and juries convicting doctors for performing abortions. In fact, even the Wisconsin Supreme Court weighed in on abortion prosecutions, and in one case decided that “both the quick child and the mother are human beings; hence to unlawfully kill either constitutes manslaughter.”
Wisconsin’s abortion regime started to crumble in 1970 when a federal court struck down part of Wisconsin’s abortion ban. Section 940.04 of the Wisconsin Statutes provided that “any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.” In Babbitz v. McCann, the court held that the U.S. Constitution prohibits a state from depriving “a woman of her private decision whether to bear her unquickened child.” The Court left intact a separate Wisconsin statute prohibiting abortion of a “quick child,” which the Court decided was after 16 weeks’ gestation.
In 1973, the United States Supreme Court decided Roe v. Wade and created a constitutional right protecting “a woman’s decision whether or not to terminate her pregnancy.” The Court imposed a trimester framework, which gave an absolute right to abortion in the first trimester, allowed for some state regulation in the second trimester, and then permitted state bans in the third trimester. But in a companion case, the Supreme Court made clear that the real holding of Roe was an unlimited right to abortion throughout pregnancy. In Doe v. Bolton, the Court explained that Roe’s abortion right extended to any situation in which the woman’s doctor determined that the abortion was necessary for a woman’s health, including “all factors,” such as “physical, emotional, psychological, familial [health], and the woman’s age.”
Explosion, then Decline
The Roe decision left much of Wisconsin’s then-existing abortion laws in tatters, and abortion became relatively unregulated. Enforcing this new constitutional right, federal judges in Wisconsin struck down state and local regulations prohibiting abortion throughout Wisconsin. Other judges around the United States followed suit.
Abortion numbers exploded as a result. In the late 1970s and early 1980s, over 20,000 abortions were performed in Wisconsin each year. Nationally, abortions reached over 1.5 million by 1980.
In response, the Wisconsin Legislature, like many other states, attempted to impose new restrictions. For example, Wisconsin required the disclosure of certain information to women seeking abortions, prohibited non-physicians from performing abortions, required written consent for minors to obtain an abortion, forced abortion facilities to report certain information to the state, and prohibited governments from funding abortion. Wisconsin also imposed a ban on abortion after viability, with exceptions for the life and health of the mother.
In response to similar restrictions imposed by Pennsylvania, the U.S. Supreme Court re-considered Roe in 1992. In this case, Casey v. Planned Parenthood, a plurality opinion refined Roe to clarify that before viability, a woman had a right to abortion free from any “undue burden” of state regulation. After viability, a state could ban abortion, so long as the state provided broad exceptions for the life and health of the mother.
After Casey, abortion numbers continued to decline from their peak as states imposed more regulations. In Wisconsin, the Legislature added on more restrictions, requiring abortionists to determine if a woman’s consent is freely given, to perform a physical exam before an abortion, to be physically present when an abortion drug is given to a woman, and to perform an ultrasound before an abortion. The Legislature also required abortionists to have admitting privileges in a local hospital, but this provision was struck down by a federal court. The Legislature also prohibited “partial-birth abortions,” and then in 2015, banned all abortions after 20 weeks or when the child is “capable of experiencing pain.”
Wisconsin’s abortion rates have continued to decline in line with the national trend.
Here’s the current landscape of abortion in Wisconsin: in 2020, the estimated number of abortions was 7,360. About 66% of Wisconsin abortions are surgical, with the rest being medication-induced. About 80% of abortions are at 12 weeks or less, with the majority at eight weeks or earlier. There are three main abortion clinics in Wisconsin offering both surgical and medication abortions: Planned Parenthood in Madison, Planned Parenthood in Milwaukee, and Affiliated Medical in Milwaukee. One clinic, Planned Parenthood in Sheboygan, currently offers only medication abortions.
After Roe: Abortion in Wisconsin
Wisconsin’s current law permits abortions under 20 weeks, subject to numerous regulations. But if Roe is overturned, these regulations will become irrelevant because Wisconsin still has a criminal statute prohibiting nearly all abortions. After Roe, this statute will spring back to life and allow prosecutors to charge and juries to convict abortionists.
From the outset, it is important to note that Wisconsin law prohibits prosecuting women who obtain abortions. Section 940.13 provides that “no fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion.”
Wisconsin’s abortion ban, Section 940.04, provides as follows:
- Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
- Any person, other than the mother, who intentionally destroys the life of an unborn quick child is guilty of a Class E felony.
As it has for over a century, this law makes a distinction between the abortion of an “unborn child” (Class H felony) and an “unborn quick child” (Class E felony, a higher penalty). Under Wisconsin precedent, an unborn child is recognized as “quick” at 16-18 weeks’ gestation, when the child begins to move.
This law provides an exception for abortions meeting all three of the following qualifications: (1) performed by a physician, (2) necessary to “save the life of the mother,” and (3) performed in a licensed maternity hospital, unless in an emergency.
If applied to current abortion practices in Wisconsin, this law would criminalize nearly all abortions. Abortions to “save the life of the mother” are exceedingly rare, if ever necessary.
The only thing preventing enforcement of this statute is Roe v. Wade—a Wisconsin federal court has made this fact abundantly clear. In Larkin v. McCann, the Eastern District of Wisconsin vacated a previous injunction against Wis. Sat. § 940.04, explaining that Roe made the need for any injunction moot: “We recognize that there will be no direct official deterrent to prosecution of the plaintiff by the defendants as a result of our action today.” The court explained that the “sweeping scope of Roe and Doe and their practical effect on the Wisconsin statute is clear”: there can be no prosecution so long as those cases remain good law. Even as late as 1994, the Wisconsin Supreme Court, in State v. Black, held that Wis. Stat. § 940.04 was a still valid statute, had not been repealed by implication or otherwise, and was enforceable to the extent it was not in conflict with the constitutional right established in Roe.
In sum, not only does Wisconsin have an abortion ban, but the ban is not enjoined by any formal court order. Therefore, if the constitutional right to abortion is abrogated by Dobbs, then there is no need to get an injunction vacated or otherwise undone by a federal court. The abortion ban will spring back to life as early as June 2022, assuming Dobbs removes the constitutional right to abortion, which is the only hurdle to enforcement of Wis. Stat. § 940.04.
With Roe gone, abortion will be a crime in Wisconsin, so long as the abortion is not necessary to save the life of the mother as provided in the statute. And to reiterate an important fact: women seeking abortions may not be prosecuted under state law. A proper defendant would only be the abortionist, parties to the crime such as nurses and receptionists, or other persons culpable under normal theories of criminal liability—but never the mother.
In Wisconsin, most crimes are prosecuted by district attorneys. Although the Wisconsin Attorney General has narrow categories of criminal jurisdiction, this jurisdiction would not extend to abortion prosecutions, unless a district attorney specifically requested assistance.
As a result, abortion prosecutions must be conducted by district attorneys with venue over the crime. The probable venue for most abortion prosecutions would be Dane County and Milwaukee County, which are home to Wisconsin’s three main abortion clinics. Another possibility is Sheboygan County, which currently has a Planned Parenthood clinic that distributes abortion pills up to 11 weeks.
If Roe is overturned, the question will become rather quickly: will district attorneys prosecute an abortion case?
In many cases, the answer is probably “no.” In fact, the Wisconsin Attorney General recently stated that he would not prosecute cases (again, assuming he was asked to prosecute by another district attorney). There is no reason to think that the Dane or Milwaukee district attorneys, who share political views with the Attorney General, would take a different approach. The Sheboygan County District Attorney, who is politically conservative, would likely enforce the statute in his county, assuming Planned Parenthood continues to offer abortions in that county. Planned Parenthood, for its part, has publicly stated that if Roe goes, it will not offer abortions in Wisconsin.
Another prosecution avenue may be available. One-third of Wisconsin’s abortions are medication abortions. These abortions do not always occur in one county, as women typically complete their abortions at home when induced by medication. Under the Wisconsin venue statute for crimes, “if the act causing death is in one county and the death ensues in another, the defendant may be tried in either county.” As a result, an abortionist from Milwaukee or Dane County could be prosecuted in another county if fetal demise occurred there. This theory assumes for the sake of argument that medication abortions would fall under Wisconsin’s abortion ban. Such a theory may be litigated though, with defendants claiming that the text of Wisconsin’s abortion statute does not provide fair notice of covering medication abortions. (In fact, for over 100 years, Wisconsin law explicitly criminalized the act of “administering” any “medicine, drug, or substance whatever” “to destroy a child,” but that language no longer appears in Wisconsin law.)
Up in the Air
While there is a path to abortion prosecutions in Wisconsin after Roe, the reality of such prosecutions will be up in the air for some time. As a result, neither pro-life nor pro-choice advocates will be happy in the immediate aftermath of a decision overturning Roe. On the one hand, Wisconsin may have a valid abortion ban, but some prosecutors may refuse to prosecute, while other more willing prosecutors may not be able to charge cases depending on the circumstances of abortion practice in Wisconsin. On the other hand, while abortionists may go unprosecuted for some time, the chilling effect could dramatically reduce the availability of abortion or significantly alter Planned Parenthood’s statewide operations.
The result may be confusion for a time as Wisconsin attempts to grapple with the practical effects of a 19th century law that springs back to life in the 21st century. The Wisconsin Legislature will likely attempt to pass new laws concerning abortion prosecutions and may even attempt to deal with certain Wisconsin district attorneys who refuse to prosecute. Local legislative officials may also jump into action, passing their own local restrictions (or permissions). And the Wisconsin Supreme Court may also get involved if litigants seek to extend Wisconsin’s constitutional protections to unborn children. As explained above, Wisconsin law has treated unborn children as persons since statehood, and so the Court may need to determine whether constitutional rights extend to those unborn persons as well.
The abortion issue, therefore, is not going away if Roe is overturned. The debate stage will just change. Instead of arguments among lawyers and unelected judges at the U.S. Supreme Court, the abortion debate will be conducted among citizens and elected officials in the Legislature, city halls, county boardrooms, and courtrooms across Wisconsin. As a result, for the first time in 50 years, Wisconsin citizens will again have a say in whether abortion should be permitted or banned within our state.