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Abortion cases before the Supreme Court could impact constitutional rights in Wisconsin

Portrait of young female patient seated on clinic chair wearing hospital gown.
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The right to abortion in the U.S. has faced a lot of recent challenges. But for the first time in decades, the U.S. Supreme Court has taken up a case that will directly challenge the ruling in its landmark case on abortion: Roe v. Wade. At the same time, the court has taken up another case on the rights of pregnant people, which could directly challenge how we exercise any constitutional right in the U.S.

There are two laws at the center of these cases, one from Mississippi and the other from Texas. In Mississippi, a law was passed banning abortion after 15 weeks of fetal development, a direct conflict with personal autonomy guaranteed in the Supreme Court's ruling on Roe v. Wade. Any ruling in the case, known as Dobbs v. Jackson Women's Health Organization, will have an impact on personal autonomy rights in the U.S. and it's likely the court intends to make a change.

"If we’re trying to understand and read the tea leaves about what the Supreme Court is doing here, it seems to me that the court would not have taken the case if it hadn’t wanted to make a substantial change to its precedents in this area," says Sara Benesh, a professor of political science at UW-Milwaukee.

It's unclear how the right to abortion will change and if Roe v. Wade will be overturned in its entirety. Still, the court's makeup with six conservative justices means the right to personal autonomy could be restricted and possibly removed for pregnant people in the U.S.

The other law under review is from Texas and it bans abortion once an embryo's heartbeat can be detected, which is about six weeks, although the heart isn't formed yet. Its method of enforcement is what makes it different from other laws restricting the rights of pregnant people. This law outsources enforcement to private citizens, allowing anyone to sue doctors or people "aiding and abetting" an abortion — including people seeking abortions or helping someone access an abortion — once an embryo's heartbeat is detected.

There are two lawsuits the Supreme Court is hearing, Whole Woman's Health v. Jacksonand United States v. Texas.

"The argument that the United States is making is that: we have very strong interests in our own sovereignty ... there can't be a situation when a state is making a law that completely thwarts the judicial review, and totally ignores the supremacy clause of The Constitution," Benesh explains.

If the Texas law were allowed to remain, this would give states a loophole to deny other constitutional rights, like the freedom to practice religion or bear arms.

The Texas law makes no exceptions for victims of rape or incest. For people with a typical menstrual cycle, this law would give pregnant people two weeks to find out they're pregnant, schedule an appointment, and get an abortion, most likely a pill, as surgical abortions aren't recommended for people this early in a pregnancy. Other people with less reliable menstrual cycles, which are around 14-25% of women, would likely be unaware they were pregnant until after those six weeks had passed.

Benesh says it's unlikely that any ruling will have an immediate impact in states without a trigger law — laws that state if Roe v. Wade is overturned, abortion will again be criminalized. But Wisconsin has an existing law that criminalizes abortion and wasn't removed after abortion was made legal in the U.S.

"We are likely to see discussion about enforcing that existing statute, about writing new statutes, but as it stands now, we have a governor who is supportive of abortion rights, and while Republicans have control of both the senate and the assembly, they don't have enough to overturn a veto... but elections have consequences," says Benesh.

Joy is a WUWM host and producer for Lake Effect.
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