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How are Wisconsin women doing under the 1849 abortion ban?


How are Wisconsin women doing under the 1849 abortion ban?

Jan 24, 2023 | 7:45 am ET
By Ruth Conniff
How are Wisconsin women doing under the 1849 abortion ban?
Health care providers marched for abortion rights at a rally in Wisconsin. Photo by Baylor Spears/Wisconsin Examiner.

The national Women’s March chose Wisconsin as the location for a massive abortion-rights rally on Sunday, the 50th anniversary of Roe v. Wade, for good reason. Our state, where a draconian 1849 abortion ban rose from the grave after the U.S. Supreme Court overturned Roe, is at the center of the battle for abortion rights. Sunday’s march focused on the spring Wisconsin Supreme Court election, which could change the ideological balance on the Court just before it hears a challenge to that 19th century ban.

But there’s more going on with reproductive rights in Wisconsin than the big, public political and legal battles over abortion rights.

Behind the scenes, women with pregnancy complications, incomplete miscarriages, and plain old unwanted pregnancies suddenly find themselves in desperate straits.

A group of Wisconsin doctors called a press conference on Monday, Maternal Health Awareness Day, to talk about their struggle to provide care to patients with problem pregnancies made much more dangerous by Wisconsin’s abortion ban. 

There has been a 100% decrease in abortions in Wisconsin in the months since the Dobbs decision scuttled federally protected abortion rights, research pulled together by the University of Wisconsin’s Collaborative for Reproductive Equity (CORE) demonstrates. Data collected by a group of scientists and medical professionals show that, from about 600 abortions per month performed in Wisconsin in April and May of 2022, in July and August, the number fell to zero. Some women have crossed the border to Illinois, Minnesota or Michigan to obtain abortions. Numbers in those states went up slightly, but not enough to make up for Wisconsin’s overall decline. Faced with the additional burdens of out-of-state travel, many women who wanted abortions didn’t get them. 

It’s strange to hear Republicans celebrating their “success” giving “voice to the voiceless,” as the organizers of last weekend’s March for Life put it. Anti-abortion zealots like to imagine that they are saving babies. By blocking women — especially women who are poor and who live in rural areas — from accessing the abortions they need and want, “pro-life” legislators tell themselves they are creating a wonderful, loving society that values human life and embraces children. 

Reality, here in Wisconsin, looks nothing like that fantasy.

One woman, suffering from an incomplete miscarriage bled for 10 days after emergency room staff turned her away, afraid that by removing fetal tissue they would be opening themselves up to felony charges and possible imprisonment under Wisconsin’s 1849 law. 

Another woman, who found out she was carrying a fetus with no brain, could not get an abortion and had to travel out of state, which forced her to delay the procedure until it posed a greater risk to her health and future fertility. 

These are among the cases Wisconsin doctors described during a press call Monday organized by the Committee to Protect Health Care. 

In the 13 states including Wisconsin with abortion bans on the books, women are three times more likely to die during pregnancy, childbirth, or shortly after giving birth, according to a report by the Gender Equity Institute. “These are preventable deaths,” says Dr. Kristen Lyerly, an obstetrician/gynecologist from Green Bay and a plaintiff in Attorney General Josh Kaul’s lawsuit against the 1849 ban. Babies born in states that have banned abortion are also 30% more likely to die in their first month of life. 

So much for the “pro-life” utopia.

If the policies you’ve been fighting for are demonstrably linked to increased deaths of mothers and babies, and you continue to pursue them anyway, can you even call yourself “pro-life”?

Lyerly described a former patient of hers whose water broke 17 weeks into her pregnancy, leaving her with “no good options.” She chose abortion, but was denied care. “She was sent home heartbroken, furious, only to return sick two days later with a life-threatening infection related to the pregnancy,” Lyerly said. “She then received her abortion but it was a much more complicated and dangerous procedure than it would have been two days prior. She spent a week in the ICU on the brink of death and she continues to recover both physically and emotionally to this day.”

Other doctors described patients undergoing medical transport to states where abortion is legal, hundreds of miles from home, in a medically unstable state. “This is not a benign thing, traveling hundreds of miles when you are imminently miscarrying or actively miscarrying. You know, you could die doing that. And that’s not acceptable,” said Dr. Ann Helms, a Milwaukee critical care neurologist and the head of the Wisconsin chapter of the Committee to Protect Health Care.

Under Wisconsin’s antique law (which Helms points out was passed “before we understood that germs cause disease”) in order to legally provide emergency abortion care, three doctors must certify that the life of the mother is truly at stake. No other medical procedure comes with such a requirement, which is hard to meet, especially in rural hospitals where there are not a lot of obstetricians on staff. 

“I think it’s very dangerous to set a precedent when you have a sick patient that you’re going to call someone who knows nothing about medicine to get permission to take care of your patient. Especially in situations where her condition can change in minutes and you have to have the ability to take care of your patient right then and right there,” Lyerly said.

There is a lot of talk about adding exceptions to Wisconsin’s pre-Civil War era abortion ban. When Assembly Speaker Robin Vos rejected a ballot measure proposed by Democrats that would ask voters if they want the ban overturned, Vos described Gov. Tony Evers’ opposition to the ban as “extreme” and said he favors exceptions for rape, incest and life of the mother.

But the life of the mother exception, which is already written into the 1849 law, is cold comfort to the doctors who actually see patients in life-threatening situations. 

“Women don’t have a warning light that comes on when they’ve crossed that threshold,” Dr. Lyerly said. “And that makes it impossible for us to be able to communicate with folks like the local district attorney, as we’re trying to determine when is that time when I can actually act to save my patient’s life. My years of training and experience have prepared me to offer the right care at the right time. But would the politically motivated DA who has no medical training agree with my clinical judgment? Hard to say. Lots of confusion. How sick does my patient have to get before we can save her? And if we wait too long, can we still save her?”

Existing rape and incest exceptions in states that wrote them into their new, post-Dobbs abortion bans have proven to be unworkable. In the months since the Dobbs decision, very few of those have been granted, according to a review of state data and extensive interviews by The New York Times. A woman in Mississippi who said she was raped could not find a doctor to give her an abortion under the rape exception to the Mississippi ban, the Times reports. Patients with serious medical complications also failed to get the abortions they sought under exceptions clauses in Indiana and Ohio.

Exceptions, it turns out, are one more misleading element of the anti-abortion fantasy. Vos has said he favors an exceptions clause in which women must provide proof that they reported an instance of rape or incest to the police. No matter that most rapes are unreported. And requiring children who are victims of incest to prove they’ve reported it to the police is downright sick. The point of all this seems to be to make sure male authorities take charge of women’s intimate health care decisions. Want an abortion? Robin Vos and the local sheriff will inspect the circumstances of the sex that led to your pregnancy and decide whether or not you deserve it.

A federal lawsuit before a judge in Texas seeking to roll back FDA approval of the abortion pill is particularly concerning for women in Wisconsin. According to researchers at the University of Texas at Austin, requests for self-managed abortion medication from Wisconsin more than tripled in the months following the Dobbs decision: from 0.9 to 2.9 per 100,000 female state residents of reproductive age. Anti-abortion activists who filed the suit want to make it impossible for women to manage their own fertility by having safe, self-induced abortions at home in the earliest stages of pregnancy.

As Helms said, explaining why, as a neurologist, she’s focused on Wisconsin’s abortion ban, “This is not a niche issue in women’s reproductive health. This is legislators saying, ‘We can legislate how health care is delivered to people and what health care is delivered to people. This is about men and women and young people and old people and decisions we make about our lives. Do they belong in the hands of legislators or do they belong in the hands of patients and doctors?”

There is only one right answer to that question in Helms’ mind: “It belongs with people who are invested and people who are knowledgeable — doctors and patients.”