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Abortion is in the courts in Wisconsin. What can we expect now?

Affiliated Medical provided abortions in Milwaukee before Dobbs found the U.S. Constitution didn't secure a federal right to an abortion. It's reopening in March 2024 after a Dane County Circuit Court judge found that an 1849 Wisconsin law doesn't apply to abortions. That case is being appealed.
Maayan Silver
Affiliated Medical provided abortions in Milwaukee before Dobbs found the U.S. Constitution didn't secure a federal right to an abortion. It's reopening in March 2024 after a Dane County Circuit Court judge found that an 1849 Wisconsin law doesn't apply to abortions. That case is being appealed.

Planned Parenthood of Wisconsin filed a new abortion lawsuit last week, asking the Wisconsin Supreme Court to find that the Wisconsin Constitution secures the right to an abortion.

Planned Parenthood says the lawsuit would solidify a pregnant person’s right to an abortion, after legal uncertainty following the U.S. Supreme Court’s Dobbs decision, which held that the U.S. Constitution did not confer a right to an abortion.

It’s another challenge to an 1849 Wisconsin law that some argue criminalizes abortion except to save the life of the mother—a law that resulted in a temporary abortion ban in the state between the release of the Dobbs decision in 2022 until July 2023.

Wisconsin Attorney General Josh Kaul challenged that law, and a Dane County Circuit judge found that the 1849 law doesn’t apply to abortions. Since July, pregnant people in Wisconsin can get an abortion in the state up to 20 weeks of pregnancy under a 1985 Roe v. Wade-era Wisconsin law. The Sheboygan District Attorney, a Republican, has appealed that case.

With this new Planned Parenthood of Wisconsin petition in the wings, WUWM asked University of Wisconsin Law School professor Howard Schweber to break down the legal landscape.

What is Planned Parenthood of Wisconsin arguing?

Their position is based on arguments that are familiar from federal cases. “One has to do with the basic notion of liberty, sometimes called the right to privacy, [which posits that] there are certain areas of decision-making in which the government should not interfere,” says Schweber. “That there are areas of intimate and private decision-making over which the government should have no control. So that's basically the privacy rights argument. The second argument has to do with equal protection of laws or equality in general, that these laws impose burdens on women and not on men. And therefore, these laws, by definition, unequally burden the decision-making of men and women, and that violates basic principles of equality.”

What are the counter-arguments?

On the equal protection claim, Schweber says an anti-abortion group would posit that, well, yes, these laws burden women, but that's virtue of biology. “Women have babies and men don't, or women become pregnant, and men don't. And therefore, that's not an inequality in the law. That's a background fact of the world over which legislators have no control, and therefore, courts shouldn't take cognizance of it,” he says. The argument that there’s no right to abortion baked into a right to privacy or life, liberty, and the pursuit of happiness would stem from a position that the government should intrude on some more private aspects of life, like child abuse, for instance. “At one time, the prevalent idea was what goes on in the home is no one's business. The father was the master of the house,” says Schweber. “We don't think that way anymore. The same goes for spousal abuse and any number of things that occur in a home setting. And according to the argument, the decision to have an abortion is one of those things in which the state should be able to intervene.”

Schweber says you can finish that argument in several ways: one arguing that a fetus is a person; two, arguing the issue is so profoundly important that the state should not leave it to private decision-making.

What does it mean to argue there’s a right to an abortion under the Wisconsin Constitution?

Schweber notes that Planned Parenthood is not asking the Wisconsin Supreme Court to find that there is a freestanding right to abortion in and of itself in the Wisconsin constitution, but that the group is arguing that such a right is part of a larger right to privacy — sometimes known as bodily autonomy — as part of the right to life, liberty and the pursuit of happiness that is written in to the state constitution.

The U.S. Supreme Court recognized similar rights to privacy and bodily autonomy in the U.S. Constitution under Roe v. Wade and other cases, until those cases were overturned in the 2022 Dobbs decision.

How does this case interact with the abortion lawsuit previously brought by Attorney General Josh Kaul?

Kaul’s case challenging the 1849 law is based on the arguments that that law is unenforceable and that more recent laws have repealed it. In July, a Dane County Circuit Court judge found that the 1849 statute didn’t apply to abortion, it only applied to the destruction of a fetus against the will of a pregnant person.

For instance, the statute could apply if someone deliberately attacked a woman’s fetus or negligently caused its death in, say, a car accident.

Because of that, Wisconsin’s Roe v. Wade-era abortion law from 1985 remained in effect. That statute bans abortions after 20 weeks of pregnancy. Sheboygan District Attorney Joel Urmanski, one of the respondents in Kaul’s lawsuit, has appealed that trial court decision and is asking the Wisconsin Supreme Court to take it up.

Schweber says that the state’s highest court is likely to accept both of these petitions and analyze them together. “It's really one case, in two separate petitions,” he says. “Both sides have asked the state Supreme Court to step in and rule, and [it will] certainly treat that as a single case.”

“There’s a great deal of political pressure on the court to take this up and answer it,” he says. That’s because both sides want the issue resolved before the next electoral cycle for political reasons. And both sides want some clarity as to what the rules are going forward for legal reasons.

Schweber thinks a ruling would probably come out in the spring.

What kind of ruling does Schweber expect from the state Supreme Court?

Currently, the Wisconsin Supreme Court has a 4-3 liberal majority. In the most recent state Supreme Court race, liberal-backed, now-Justice Janet Protasiewicz ran on the issue of abortion rights.

Schweber says the most likely outcome is that this court does say that the Wisconsin constitution secures a right to abortion, but that the 1985 law protecting abortion up to 20 weeks is a valid regulation of the exercise of that right.

Establishing a certain right derived from the state constitution doesn't mean there can be no rules at all about how that right is exercised, he explains. “So, one can certainly argue that [the 1985 law] doesn't go far enough in one direction or the other. But there's nothing about it that's absurd or wrongheaded… and from a political perspective, that's a really sensible outcome that diminishes, rather than increases, the temperature of the issue,” he says.

Schweber thinks justices on the court will pay at least some attention to the question of what the next judicial election cycle is going to look like and not want to make their position on abortion the motivating issue in the electoral cycle.

How do the courts and the legislature interact in setting Wisconsin’s abortion law?

The legislature makes the laws, the court reviews them. And just because the state Supreme Court determines that something is a right, it doesn’t mean that the legislature can’t try to regulate it.

“My favorite example is the right to free speech,” explains Schweber. “There's no theory of the right to free speech that says you have a right to say, ‘Give me your wallet, or I'll shoot you.’ You know, there's all kinds of things that are regulated, even though they fall in an area designated as a right.”

Schweber says that were the state Supreme Court to side with Planned Parenthood and find that the state constitution secures a right to abortion, “The almost certain meaning would be that it’d be very much harder and much more difficult for the legislature to enact a law that restricts abortion, and have that law survive judicial review in our court.”

If the state’s highest court rules against Planned Parenthood and finds there’s no right to an abortion secured in the state constitution, Schweber says the window of opportunity for Republicans in the legislature to pass strict restrictions on abortion is very narrow, given that the state has just adopted new voting districts.

“So, for the first time in 10 years, in the elections in November, Democrats have a chance of taking control of the legislature or even if they don't, certainly the Republican majority will be smaller,” he predicts.

LISTEN: In the second half of this edition of Capitol Notes, JR Ross, editor of WisPolitics.com explores potential outcomes of Wisconsin's new legislative districts.

The Wisconsin Assembly has passed a bill seeking to get before voters a binding statewide referendum that would give voters the option of limiting abortions to 14 weeks of pregnancy, but Democrats are not behind it, nor are anti-abortion activists. Democratic Governor Tony Evers has vowed to veto that bill even if it passes the state senate.

How have other states approached this issue?

There is a piecemeal approach to abortion rights around the country since the Dobbs decision struck down the federal right to an abortion. Sometimes voters can get constitutional amendments on the ballot, or legislatures can place it there, to secure a right to an abortion via a state constitution. “There have been seven referenda since the Dobbs decision,” says Schweber. “In all seven instances in which the referendum occurred, the outcome was to declare that state constitutions guarantee rights to choose to have an abortion.”

Schweber says If you move outside that referendum context in the context of [law]suits and statutes, “It's much more mixed. There's a statute in the works in Idaho. There have been various court rulings, in all these cases to ask what it's meant for those states.”

Schweber says some of these states already had an infrastructure in place for abortions to be available, in other states that infrastructure was almost non-existent.

“In terms of what the consequences will be for the actual availability of abortion in those states and women in those states, that will take time to be worked out and to be seen.”

In Wisconsin, three cities have abortion clinics: Milwaukee, Madison and Sheboygan.

Can we expect abortion to remain a crucial political issue in Wisconsin?

There’s going to be another election for a state Supreme Court seat in 2025, when liberal-backed justice Ann Walsh Bradley is up for reelection. GOP former Wisconsin Attorney General Brad Schimel has announced a run for that seat. Schimel has a long history of being staunchly anti-abortion and has agreed with the position that abortions should be banned in Wisconsin in every case except where the life of the pregnant woman is involved.

“He's even among conservatives, a rather hardline, pro- life[r], just hardline pro-life views,” says Schweber.

Schweber says both liberals and conservatives will mobilize around the issue of abortion, both in 2025 and this election year.

“One of the things that has been true thus far since Dobbs, is that abortion remains a highly mobilizing issue [in Wisconsin]. It's unclear how long that will be true. One has to imagine that at some point states like Wisconsin will end up with laws that are acceptable to enough of the voting population,” says Schweber. “But we're nowhere near that moment yet. And for this coming cycle in November, this is clearly going to be one of the big hot button issues that the electorate has to think about.”

Maayan is a WUWM news reporter.
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