Liberal-leaning Justice Ann Walsh Bradley is retiring from the Wisconsin Supreme Court, putting the court’s narrow liberal majority at stake this year. An election for that seat in April will again determine the court’s ideological balance.
One of the big issues before the court is abortion law in Wisconsin. It has been at stake ever since the U.S. Supreme Court overturned Roe v. Wade in 2022. For an update, WUWM spoke with Bryna Godar, staff attorney at the State Democracy Research Initiative at UW Law School.
What’s the latest on the abortion law cases?
The Wisconsin Supreme Court held oral arguments in November on a case brought by Democratic Attorney General Josh Kaul. He’s arguing that an 1985 law limiting abortions to 20 weeks and other laws have served to repeal an 1849 law on the books that some conservatives argue bans abortions. He’s also arguing that the 1849 law is a “feticide” law, which would mean it bans causing harm without consent to a person’s fetus and doesn’t ban an abortion to which a woman consents.
What’s happening in the statutory case?
“And the biggest issues you know, that came up in oral argument were sort of how the court should approach interpreting that 1849 statute: should it interpret it as only banning feticide, or should it interpret it as having been repealed by these later laws that essentially said abortion was legal up to a certain point, because those later laws conflict with what would be read as sort of an all-out abortion ban,” says Godar.
“This case really is going to determine what the law on abortion currently is in Wisconsin,” Godar continues, “[after] a circuit court, a lower court in Wisconsin, had already concluded that this so-called 1800’s abortion ban only applied to feticide and not to consensual abortions.”
What’s happening in the case that’s arguing that the 1849 law is an unconstitutional ban on abortion?
At the same time, there’s nother case from Planned Parenthood of Wisconsin, which is arguing that the 1849 law is an abortion ban that’s barred by the Wisconsin Constitution under the right to life, liberty and the pursuit of happiness.
Godar says the state Supreme Court hasn't actually scheduled briefing or oral argument in that case, likely in part because if the state Supreme Court finds that the 1849 law isn’t a ban on abortions but is instead a feticide law, then the court couldn’t go forward and find that 1849 law—and thus other bans on abortion—unconstitutional.
“The court typically wouldn’t take on the role of just independently deciding whether there is a right to abortion under the Constitution without there being some specific law that is being challenged. And that’s not to say that a different claim couldn’t be brought that does that, but it’s not clear with this specific case how it was brought, if it would go forward or not.”
What happens if the court finds that the 1849 law doesn’t apply to abortion?
If the court rules that that law does not apply to abortions, Godar says the state will have just sort of the same abortion framework that we have had since the trial court’s decision. Currently, abortion health care is available up to 20 weeks.
What are the political implications of this abortion litigation?
Will a decision come out by April?
The election for the court’s open seat is Tuesday, April 1, 2025. Godar says, “It’s hard to say for sure, but I think it’s certainly possible that they could issue a decision before then. Oral argument took place last month, and so it would be a reasonable amount of time for them to write an opinion, but it’s just hard to say if that will happen before or after the election.”
How important will the issue of abortion be to the electorate?
Whether or not the court issues a decision in the statutory case before April, Godar thinks it’s pretty unlikely that they will issue a ruling on a constitutional right to abortion. “And, so, I think abortion is going to continue to be a pretty major issue for folks headed into the April Supreme Court election.”
Another factor that could come into play is if the federal government gets involved in this in some way and takes these [abortion law] decisions out of states’ hands. “That could also lessen how prominent of an issue this is headed into April,” says Godar, “but, overall, I think it will still be one of the top issues that voters are thinking about.”
What do we know about the candidates on this issue?
Jan. 1, 2025, is the filing deadline for candidates, so more people could enter the race, but the two leading names are currently Waukesha County Judge Brad Schimel, who’s backed by the GOP, and Dane County Circuit Court Judge Susan Crawford, who’s backed by Democrats.
Godar says their previous records are interesting in that they both have prior records on the abortion issue. “So, Judge Crawford, when she was an attorney, she represented Planned Parenthood in a case to expand Wisconsin abortion access. And Judge Schimel, when he was attorney general, he was on sort of the opposite side of things and supported more restrictions on abortion.”
Godar says that given that both candidates have had these public lives prior to becoming judges, “we have a little bit of their records to go on in thinking about how they might approach these issues.”
