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Why medical care could be criminally prosecuted under Wisconsin’s 1849 abortion law

gavel on the table
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Roe v Wade news headline with gavel on a copy of the United States Constitution

The end of Roe v. Wade has plunged much of the U.S. into a state of confusion and legal limbo. In Wisconsin, a 1849 law making nearly all abortions illegal is likely in effect. Abortion care is no longer available in the state, and although there is an exemption for abortions that save the life of the mother, the limitations of that exemption aren’t clear. As a result, physicians may choose to err on the side of caution and allow pregnant people to die instead of risking criminal prosecution by saving them.

The law predates the discovery of germs, ultrasounds, and our modern understanding of fetal development. It defines abortion as anything willfully ending the life of an unborn child, which it defines as starting from conception and ending in a live birth. That could mean many forms of birth control are illegal under this law, including IUDs, the morning after pill, birth control pills, and other forms of hormonal birth control that stop the implantation of a fertilized egg. This concept was unknown at the time this law was written.

Governor Tony Evers called for a special session to address the law but the Republican-controlled legislature took no action — gaveling in and out of the session without discussion.

To get some clarity on what this law could mean for pregnant people in Wisconsin, Barbara Zabawa, a lawyer and clinical assistant professor at UW-Milwaukee for the College of Health Sciences, shares more.

"In Wisconsin, the abortion law that is from 1849 is a criminal statute that basically punishes physicians who intentionally destroy the life of an unborn child. There is one exception, therapeutic abortions that are done because of medical necessity and they have to be performed by a physician in a maternity hospital unless there's an emergency," Zabawa explains.

Zabawa explains that abortions for rape or incest are not allowed under the law.

Prescribing abortion pills would be against the old law as well and Zabawa questions if it could challenge giving out contraceptives overall. Although the ambiguity in the law leaves many questions about the legality of different birth control methods, healthcare organizations, including Planned Parenthood, are continuing to offer access to all forms of birth control.

Because the law targets physicians, Zabawa says doctors may choose to avoid potentially dealing with criminal exposure. "There's definitely going to be hesitation on the part of healthcare providers who are especially risk-averse," Zabawa says.

"The Supreme Court has said, well, the fetus' life is as important if not more than the mother's, so if you can still keep the fetus alive and let the mother's life go, then I guess that's okay. They made policy in a way, that's what Supreme Court decisions do, is they do make policy whether they want to see that as a outcome or not," she says.

When considering what situations could determine if an abortion would be saving the life of the mother, Zabawa says the law isn't clear. For example, a pregnant person who needs cancer treatment may not be able to receive treatment if it could harm the fetus. In turn, risking the pregnant person's life. Zabawa says it's unclear if they would need to be actively dying to get a legal abortion under the law.

Governor Tony Evers has said he will offer clemency to anyone convicted under the 1849 abortion law, and will not appoint district attorneys who would enforce the ban. Milwaukee County DA John Chisholm signed onto a statement along with dozens of other DAs around the country, committing to not criminalizing abortion in light of the Supreme Court’s decision.

Zabawa says she hopes that the prosecutors in Wisconsin come out with a declaration on the issue to help get some clarity and reduce the uncertainty on the state of the law.

"So much has depended on this 50 year history of Roe v. Wade, that we aren't really realizing the full effect of this decision and all the things that are connected to it. It may matter to even people that were in support of removing abortion as a right. They may be surprised to learn of the other things that could be potentially affected," says Zabawa.

Joy is a WUWM host and producer for Lake Effect.
Kobe Brown was WUWM's fifth Eric Von fellow.
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