In a leaked draft opinion from the U.S. Supreme Court, obtained by Politico, a majority of justices expressed support to overrule Roe v. Wade and other longstanding precedent that has legalized abortion in this country.
Because of that precedent, the right to an abortion is protected in Wisconsin, despite an 1849 law that’s never been repealed that criminalizes abortion in all circumstances but to save a woman’s life.
Marquette politics professor Paul Nolette explains what would happen in Wisconsin should that federal precedent be struck down. First, he notes a difference between the 1849 law and what’s called a “trigger law.”
“Trigger laws typically refer to laws passed just in the last few years in a number of states, especially red states, that say, if Roe vs. Wade is overturned that abortion will become illegal in the state or otherwise specifies what will happen to abortion, additional restrictions, what have you, and often say, when that's going to happen, is there going to be a rollout is it going to be immediate?”
Nolette says the Wisconsin situation, on the other hand, just brings back to life this really, really old law. “So, it's not a trigger law because it's not saying this is goes back into effect triggered by the reversal of Roe v. Wade, which is where the trigger comes from. But in effect, it still puts an anti-abortion law on the books. So that's what would exist in practice.”
He says the only difference is it's even more unclear who's going to enforce this law or how that's going to work, since it's such an old law that doesn't give a whole lot of detail.
Therefore, either Wisconsin's Republican-led Legislature would have to clarify the law, and have that signed into law by whoever the governor is, or the courts would have to decide how this law is to take effect.
“And so there's undoubtedly going to be litigation no matter what happens,” Nolette says. “If the Justice Alito [draft] decision becomes law, Roe vs. Wade is explicitly overturned, that's certainly not the end of litigation, I'd say either at the federal level or the state level, because you're gonna have a lot of unclear situations about what to do with interstate travel [people who want an abortion and head out of state to do so] or, or what to do with these really old anti-abortion laws that are on the books and how they might be enforced.”
The U.S. Supreme Court also recently issued a favorable decision for Wisconsin Republicans over the state’s redistricting maps based on the 2020 Census that the state supreme court then put into effect. Those maps make it almost inevitable for Republican majorities to remain in the state Legislature.
“And I suppose that's one irony here,” says Nolette. “Because reading the draft opinion by Justice Alito, one of the recurring points in there is to say by overturning Roe v. Wade, this sends things back to the states, where there can be democratic deliberation about abortion, and then votes on whether to go in a pro-choice or pro-life direction.”
Nolette says that's complicated by the fact that the redistricting lines in Wisconsin and other states as well don't reflect the democratic will of the, of the citizenry, because they are so skewed towards one side.
According to an October Marquette University Law School poll, 61% of Wisconsin voters said abortion should be legal in all or most cases and only 34% said it should be illegal in all or most cases.
Nolette says the will of that 61% is not necessarily going to be reflected in the state Legislature but it's possible that, that could play a role statewide. “So, in the governor's race, the attorney general race, that'll matter more, especially if abortion is a big issue, but for the Legislature, not so much.”
