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Future of Wisconsin abortion laws uncertain on Roe v. Wade anniversary

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Originally Published by The Cap Times, January 22, 2022


On the 49th anniversary of Roe v. Wade, abortion rights activists are bracing themselves for the possibility that the landmark U.S. Supreme Court ruling won’t have a 50th — while the anti-abortion movement is increasingly optimistic that will be the case.

In Wisconsin, a reversal of the decision would render abortion illegal, as it is one of eight states with a pre-Roe criminal abortion ban on the books. Since the ruling was issued in 1973, an additional 11 states have enacted bans intended to take effect if the decision is overturned.

The Supreme Court is expected to rule on Dobbs v. Jackson Women’s Health Organization — a case challenging the constitutionality of a Mississippi ban on abortions after 15 weeks — within the next six months. The Mississippi case follows a 5-4 decision in September 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).

The court appears poised, with a 6-3 conservative majority, to at least weaken — if not completely overturn — Roe.

“The right to access abortion in Wisconsin is facing its most dire threat in five decades,” said Democratic Gov. Tony Evers during a Thursday news conference at the state Capitol. “(If Roe v. Wade is overturned) our state would turn back the clock on reproductive health access by 50 years.”

Evers was joined at the Capitol by abortion rights supporters, Attorney General Josh Kaul and the lead authors of a bill to repeal Wisconsin’s abortion ban.

The following day, thousands of anti-abortion activists from throughout the country gathered on the National Mall in Washington, D.C. — including supporters of Wisconsin Right to Life and Pro-Life Wisconsin — for the 49th annual March for Life.

“Many people believe this is the once-in-a-generation year that will bring monumental change to the pro-life movement,” Wisconsin Right to Life legislative director Gracie Skogman said in an interview. “There is a sense of hope and excitement at the march, as we focus on a post-Roe country, and how we can best step up to support both women and their unborn children in that new reality.”

Wisconsin’s criminal abortion ban — on the books since 1849 and unenforceable since 1973’s Roe decision — would make any person other than the mother who “intentionally destroys the life of an unborn child” 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.

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.

“If Roe v. Wade is struck down, almost immediately there will certainly be litigation over what the state of the law in Wisconsin is … so there will be significant uncertainty about the state of the law,” Kaul said during Thursday’s news conference. “That’s cold comfort for people in Wisconsin who need to access reproductive health care services, because doctors and providers are going to be put in an impossible position.”

Sen. Kelda Roys and Rep. Lisa Subeck — both Madison Democrats — are the lead authors on a bill that would repeal the state’s abortion ban. Democrats have introduced versions of the bill multiple times, without success. The legislation, Roys said, would “allow people in Wisconsin to maintain control over our own health care, our own lives and our own bodies, regardless of what happens in Washington, D.C.”

Subeck acknowledged to reporters that she is “under no illusions” that the Legislature’s Republican majority will give the bill a hearing or schedule it for a vote, but argued the only way to change that is for voters to speak out in support of it.

“Right now, the threat is imminent,” Subeck said. “The Supreme Court has a case before it that could mean the end of safe and legal abortion in Wisconsin. And I will be clear: that does not mean the end to abortion. We know from before Roe was decided that when an individual faces an unplanned or a medically untenable pregnancy, she will do what is needed to terminate that pregnancy — and that puts the lives and health of mothers in our state in imminent danger.”

For anti-abortion advocates, a repeal of Roe v. Wade would not bring an immediate end to their cause, Skogman said.

“Wisconsin’s current ban puts our state in a powerful position to defend life if Roe is overturned, but the battle to make abortion unthinkable in Wisconsin will continue, and women will need more support than ever when they chose life for their unborn children,” Skogman said.

Wisconsin laws already place limitations on access to 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.

As the Supreme Court contemplates the future of Roe v. Wade, abortion will undoubtedly be a point of contention in Wisconsin’s gubernatorial and Senate campaigns.

“Wisconsinites have an opportunity in 2022 to elect a governor and attorney general who are willing to protect the preborn. We must do everything we can to show Wisconsin voters that this election will have real and lasting consequences on our ability to get rid of abortion in our state,” said Wisconsin Right to Life executive director Heather Weininger in a statement.

On Friday, Republican gubernatorial candidate Rebecca Kleefisch tweeted, “I’m pro-life because I’m pro-women and pro-science. Thank you to all who are marching in DC today at the #MarchforLife! As governor, I’ll fight for the unborn.”

Kevin Nicholson, who’s expected to enter the GOP primary for governor, tweeted a photo from the march, declaring himself “proudly pro-life.”

Evers, on the other hand, has vetoed several bills that would further regulate and restrict access to abortion — some more than once.

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