Two paths forward on Wisconsin’s abortion ban
Wisconsin’s 172-year-old abortion ban, which doesn’t include exceptions for rape or incest, proved to be an influential force in this month’s elections. With uncertainty about the future of abortion hanging over Wisconsin ever since the U.S. Supreme Court overturned federally protected abortion rights in June, Democrats galvanized women and young voters on the message of improving access. Some Republican candidates were firm about enforcing Wisconsin’s 19th century ban, while others treaded lightly, saying they would support additional exceptions.
The reelection of Democrats Gov. Tony Evers and Attorney General Josh Kaul as well as Republicans’ failure to secure a veto-proof legislative supermajority leaves Wisconsin in about the same position it was in before the election. Democrats are pursuing action through the courts while Republicans discuss the possibility of new abortion legislation.
“If [GOP candidate] Tim Michels had been elected as governor and if [Republican] Eric Toney had been elected as the attorney general for the state, a new law would have likely been passed, there’d be prosecution. The landscape moving forward would look very different,” said Michelle Velasquez, director of legal advocacy with Planned Parenthood Advocates of Wisconsin. “With Kaul and Evers’ reelection, we’re really able to just stay the course.”
Planned Parenthood of Wisconsin stopped providing abortion services immediately following the Dobbs v. Jackson Women’s Health Organization decision. Under Wisconsin’s 1849 abortion ban, providers could be prosecuted as felons if they continued to offer abortion services. The organization now helps people seeking the procedure find care in other states, and offers follow-up services.
In the days following the Dobbs decision, Kaul filed a lawsuit in Dane County Circuit Court asking the court to provide clarity on state abortion law by declaring the 1849 ban unenforceable due to its conflict with statutes enacted after it.
“Wisconsin has an entire other regulatory scheme — abortion restrictions and things that make it difficult to access care — that have been on the books and have been added to even quite recently,” says Mel Barnes, staff counsel at Law Forward. Plaintiffs in the lawsuit argue that these more recent laws supersede the state’s 19th century abortion ban and render it invalid. Some of the more recent regulations include restrictions that require physicians rather than nurses or midwives to perform abortions, parental consent requirements for minors, a ban on abortions after 20 weeks and the requirement that patients receive state-mandated informations.
The lawsuit is pending and parties in the case have changed several times since it was filed during the summer.
The current defendants in the case are district attorneys in three counties where Planned Parenthood previously provided abortion services: Sheboygan County DA Joel Urmanski, Dane County DA Ismael Ozanne and Milwaukee County DA John Chisholm. Kaul first filed the case against Republican legislative leaders including Senate Majority Leader Devin LeMahieu, Senate President Chris Kapenga and Assembly Speaker Robin Vos, however, they were dismissed after arguing that legislators are not the parties who would enforce the law and Kaul amended the lawsuit to include the district attorneys.
Three physicians were granted motions on Friday to intervene in the case, essentially adding them as parties. Barnes says physicians have a clear, vested interest in the case since they were the only ones permitted to practice the procedure in Wisconsin and could face prosecution under the 1849 ban.
Barnes says the addition of the physicians will provide a fuller understanding of the case to the court.
“Having those voices before the court as part of this lawsuit offers an opportunity for the Court to hear more about the realities of this care and patients’ lives, and what enforcing this law and criminalizing these doctors would mean in our state,” Barnes says.
Evers and Kaul have committed to not pursuing prosecution against physicians performing abortions. According to Velasquez, that’s not sufficient reassurance for physicians.
District attorneys are tasked with enforcing the law throughout the state. Some DAs have said they would enforce the abortion ban while others say they will not.
“We’ve had some district attorneys say they would not invest resources into investigating and criminalizing abortion under the 1849 law,” Velasquez says. “But there are also district attorneys who have made their position very public, in that they believe that law sort of automatically sprung back to life upon the overturning of Roe.”
The intervention of the physicians could also potentially provide the lawsuit with a secondary life if Kaul were removed, according to Velasquez.
“If a court were to determine that the attorney general doesn’t have standing to even bring this lawsuit because his office isn’t an office that could be sued under this lawsuit,” Velasquez said. “Then those physicians — if they’re granted permission to join — their case would still stand.”
Evers supports Kaul’s lawsuit and says he’s confident it will be successful.
At a press conference the day after his reelection, Evers reiterated his position and cast doubt on the prospects for resolving the ambiguity in Wisconsin’s abortion laws legislatively.
“If the Legislature wants to put a proposal up, I’ll certainly look at it, but just listening to the comments during the campaign, I don’t think it exists,” Evers said. “We are going to continue pursuing that lawsuit. There’s no question, and I think we can win that lawsuit.”
Republican legislative leaders have recently taken a different tone, hinting that discussion of a bill is not out of the question for the coming session.
Senate Majority Leader Devin LeMahieu said in an interview with WKOW that Republicans need to continue to protect life starting from the moment of conception, and his caucus will need to look into the potential for legislation. Assembly Speaker Robin Vos in the days following the elections called on Republicans to pass a bill that would amend the ban to include exceptions for rape and incest and said he doesn’t believe this should be solved through Wisconsin’s courts.
“I heard an awful lot of arguing and complaining over the course of the past four years that we shouldn’t run to court to make public policy, that’s what the Legislature and the governor are supposed to do,” Vos told reporters.
Evers called a special session after the Dobbs decision asking the Legislature to consider a repeal of the 1849 ban. Republicans gaveled in and out of the session without discussion. Evers called another special session in September asking the Legislature to consider passing a constitutional amendment that would have created a path for voters to decide the question. Republicans, again, gaveled in and out.
The passage of a bill with exceptions, according to Velasquez, would be a way of solidifying Wisconsin’s abortion ban.
“The potential for an additional exception for rape and incest would be really a manuever used to essentially kill the lawsuit,” Velasquez said. She said if a bill passing amendments to the 1849 ban became law, it would essentially validate the law and there would no longer be need for a court to clarify the law.
Adding narrow exceptions to the law would not only invalidate the lawsuit seeking to overturn the ban, it would solidify much restricted access to abortion in Wisconsin in the post-Dobbs era.
Vos said in a later interview on conservative talk radio that he would be willing to require rape or incest victims to produced a police report in order to qualify for a legal abortion.
“We know that many sexual assault perpetrators are people that the victim knows and that can be one of the reasons that people don’t report to law enforcement,” Barnes says. “What Vos has proposed is not a solution, and it’s not a compromise, and it is not what the women of Wisconsin deserve.”
According to the Rape, Abuse & Incest National Network, the majority of rape cases — two out of three — are not reported to the police. Some reasons for not reporting include the belief that police would not or could not do anything to help.
Senate Minority Leader Melissa Agard (D-Madison) criticized Vos’ comments and said the proposal would be a cruel and unusual punishment for victims who become pregnant.
“We do know that the overwhelming number of sexual assaults that occur are not reported, and forcing a person who has experienced sexual assault or rape or incest to report that trauma when they’re not ready to be able to face this flies in the face of all evidence-based policy making,” Agard said.
Assembly Minority Leader Greta Neubauer said her caucus will continue to work to restore access to abortion, and they’re open to serious discussion. However, she cast doubt on Republicans’ seriousness.
“Thus far [Republicans] have chosen not to show up to special sessions, but we’re always open to conversations about policy that benefits Wisconsinites,” Neubauer said on WISN.
The Legislature will return to session in January. Meanwhile it is too early to pinpoint when a decision could come from the courts.
A briefing schedule has yet to be set establishing when written arguments from each party need to be submitted to the court.
Barnes adds that a future decision may not be the end of legal action over the 1849 ban.
“There are always potential appeals, no matter who wins or loses. It’s always possible that the side that loses could appeal, which would mean that the case could go to the court of appeals, or on to higher courts,” Barnes says. “That timeline factor is just pretty impossible to know at this point.”
A judgment from the courts declaring the ban unenforceable would likely not be the end of debate about abortion in Wisconsin either. A decision in favor of Kaul would revert Wisconsin law back to its state pre-Dobbs — an environment where abortion was already difficult to obtain.
“Care would still be incredibly restricted and difficult to access in our state,” Barnes says. “What we really need to do in order to fully protect the freedoms of people in Wisconsin and make sure that they have that freedom to access the health care that they need, is not just return to the status quo, but also repeal these other restrictions that are unnecessary, not based in science and make care so difficult to access.”