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With federal protections overturned, abortions to halt in Wisconsin

The U.S. Supreme Court Issues Opinions
Anna Moneymaker
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An abortion rights activist protests next to anti-abortion rights activists in front of the U.S. Supreme Court Building on June 23, 2022 in Washington, DC.

The U.S. Supreme Court has ended constitutional protections for abortion that had been in place nearly 50 years — a decision by its conservative majority to overturn the court's landmark abortion cases. It is now technically illegal to get an abortion in the state of Wisconsin.

Wisconsin has an 1849 law that bans abortions, making it a felony offense. The language of the law does allow a woman to legally destroy her own fetus or embryo and grants immunity only if an abortion is needed to save a woman’s life and is performed at a hospital.

Another state law, passed in 1985, prohibits abortions performed after a fetus reaches viability — when it could survive outside the womb — conflicting with the 1849 ban.

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Teran Powell
Affiliated Medical Services escorts stand in support of patients outside the center among anti-abortion protestors.

There are differing opinions on whether the 1849 ban automatically goes into effect. But until that is clarified, Planned Parenthood of Wisconsin has stopped providing abortions. President and CEO Tanya Atkinson said about 70 patients had abortions scheduled today and tomorrow.

"And when the [Supreme Court] ruling came down, we had to go out to those individuals who were in our waiting room, and say 'We’re so sorry – that decision you made for yourself, for your family, for your future, is no longer yours to make here in Wisconsin'" Atkinson said.

Planned Parenthood is now working with patients to find safe, legal abortions elsewhere – mainly in Illinois.

What happens next with abortion law in Wisconsin is an open question. Gov. Tony Evers called the Republican-controlled Legislature into special session this week in an effort to repeal the 1849 abortion ban, but lawmakers refused to take action.

Wisconsin Attorney General Josh Kaul said whether the 1849 law is in effect, and can be enforced, will likely be questions for the courts.

"Wisconsin has a 19th century abortion ban on the books, but it also has a series of rules that regulate abortion and are based on the assumption that abortion is lawful," Kaul told WUWM. "So expect that we will see litigation, and while that plays out we’ll see significant uncertainty about what the state of the law in Wisconsin is."

Kaul, a Democrat, said he will not enforce the abortion ban.

But Planned Parenthood of Wisconsin’s legal advocacy director, Michelle Velasquez, said healthcare providers are still at risk of criminal charges if they continue with abortions.

"There are 72 counties in the state with different district attorneys who may have different thoughts on the applicability of the law, with the ability to pursue criminal charges, since most criminal charges are sought by county prosecutors," said Velasquez.

Velasquez said Planned Parenthood is considering its legal options, with the goal of bringing back safe, legal abortions to Wisconsin.

Kaul said his office plans to announce its “next steps” next week, but declined to say what options are on the table.

Anti-abortion rights group Wisconsin Family Action released a statement celebrating the overturning of Roe v. Wade, and encouraging prosecutors to enforce the 1849 abortion ban.

“We call upon Attorney General Josh Kaul and all county district attorneys to uphold the 1849 law that is still enforceable," said WFA's Julaine Appling. "We ask simply that you do your job and set aside your personal political agendas."

Wisconsin Republican legislative leaders haven’t indicated what action, if any, they plan to take, though they have released statements applauding the Supreme Court’s decision.

Michelle was named WUWM's digital manager in August of 2021.
Emily has been reporting on Milwaukee-area education for WUWM since 2018.
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