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What's next in the fight over abortion in Wisconsin

A crowd of protesters marches in front of a looming church tower
Chuck Quirmbach
Abortion rights marchers pass by Gesu Catholic Church on the Marquette University campus in Milwaukee in May 2022.

Abortion may have pushed many Wisconsinites to the polls during the midterm elections earlier this month.

Democrats Gov. Tony Evers and Attorney General Josh Kaul campaigned — and ultimately prevailed — as defenders of abortion access. But Republicans still have control of the legislature, meaning Wisconsin is in the same boat that it was before the election.

So, what's next in the fight over abortion access in the state?

Nearly all abortions are illegal in Wisconsin, but polls show that most Wisconsinites want to see abortion access restored.

There’s two ways that could happen.

The legislature could repeal Wisconsin’s 1849 abortion ban, which went back into effect in June, after the U.S. Supreme Court overturned Roe v. Wade.

But that’s pretty unlikely, said Michelle Velasquez, legal advocacy director at Planned Parenthood Advocates of Wisconsin.

That leaves path number two.

“The other path moving forward is a legal one,” Velasquez said. “That would essentially leave it up to the courts to determine whether or not Wisconsin is going to be a state that bans abortion or a state that protects bodily autonomy.”

Immediately after the 173-year-old abortion ban went into effect, Evers and Kaul filed a lawsuit to overturn it. Their argument is that laws enacted post-Roe can’t coexist with the older ban. More recent laws include a required waiting period before getting an abortion and a ban on abortions after 20 weeks.

“The newer statutes clearly allow for abortion,” Velasquez said. “The old law just bans pretty much all abortion across the board. The argument is that because those laws are in conflict with one another, statutory construction laws require that the newer statutes should prevail over that old statute.”

Kaul also argues that the abortion ban was unenforced for so long, that it’s obsolete.

Last week, several physicians joined the lawsuit as plaintiffs. Currently, the ban allows for life-saving abortions. But it lacks clarity on what that actually looks like, making doctors fear criminal charges.

Velasquez thinks the physicians help strengthen the case.

“They can really outline for the court exactly what is at stake from their perspective and their inability to provide comprehensive reproductive health care to their patients,” she said.

The case is making its way through Dane County Circuit Court now.

“I think it’s going to take several months before the process in the trial court plays out,” Kaul told WUWM. “Then, after there's resolution in the trial court, it’s virtually certain to get appealed.”

That means the case will likely land at the Wisconsin Supreme Court.

With conservative Justice Patience Roggensack retiring, there’s an election next spring for the open seat. Currently, there’s a 4-3 conservative majority. The election could shuffle things up.

The new justice takes the bench next August. Whether the case gets to the court before then depends on the path it takes, said Barbara Zabawa, a health law specialist and assistant professor at the University of Wisconsin-Milwaukee. Usually, cases go to the Court of Appeals, then the Supreme Court. That can take a while.

“But — it can happen where the Supreme Court can take a case directly from the trial court and skip over the Court of Appeals, which could then make it much more quick,” Zabawa said. “It could possibly be that the current state Supreme Court could decide the case.”

A lot hinges on the April Supreme Court election, and anti-abortion groups are paying attention.

“Even before the results of the midterms, we had been messaging and talking about the importance of that election, truly believing it’s more important than some of the midterm elections,” said Gracie Skogman, legislative director at Wisconsin Right to Life.

In the meantime, Kaul has made it clear he won’t enforce the abortion ban. But that may be little comfort to physicians who are still vulnerable to prosecution from local district attorneys.

“The vast, vast majority of all criminal matters are prosecuted at the county level,” Velasquez said. “There’s certainly the potential for different district attorneys around the state to have different views about the enforceability of this law, and whether or not they would prosecute it.”

Republican Assembly speaker Robin Vos has also signaled support for amending the abortion ban to include exceptions for rape and incest.

The exception would require victims to provide a police report proving they are victims of sexual assault. However, the vast majority of sexual assaults aren’t reported to law enforcement.

That has the potential to sway the ongoing legal battle.

“If the legislature amends that existing law, I think that would very likely make any argument that the newer laws supersede that 1849 ban moot,” Velasquez said. “Because now we would have a new act of the state legislature amending that 1849 ban.”

Evers would likely veto such a bill.

Editor's note: Chuck Quirmbach contributed to this report. WUWM is a service of UWM.

Lina Tran is a WUWM news reporter.
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