Wisconsin's Abortion Laws: Triggering A Ban?

Wisconsin does not have a trigger law, but the effect is the same. The state law banning abortions, which dates back to 1849, is now in effect since Roe v. Wade was overturned. However, there is uncertainty as the state's Attorney General has pledged not to enforce the ban, and the law is expected to be challenged in court.

Wisconsin's pre-Roe v. Wade abortion ban

Wisconsin does not have a trigger law, but the effect is the same. The state law banning abortions, which dates back to 1849, is now in effect after the overturning of Roe v. Wade. However, the law's enforceability is disputed and being considered by state courts.

The 1849 law, passed just a year after Wisconsin became a state, outlawed abortions except when the procedure will save the life of the mother. The law states:

> "Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be hereby produced, be deemed guilty of manslaughter in the second degree."

The law makes a distinction between the abortion of an "unborn child" (Class H felony) and an "unborn quick child" (Class E felony, a higher penalty). Under Wisconsin law, an unborn child is recognized as "quick" at 16-18 weeks' gestation when the child begins to move.

The consequences of violating the law are severe. Performing or assisting in any abortion is considered a Class H felony, punishable by up to six years in prison. If the abortion results in the termination of an "unborn quick child," the penalty increases to a Class E felony, punishable by up to 10 years in prison.

The law allows for abortions only when the health of the mother is at risk. There are no exemptions for victims of rape or incest. It is important to note that Wisconsin law prohibits prosecuting women who obtain abortions. Only the abortionist, parties to the crime such as nurses and receptionists, or other persons culpable under normal theories of criminal liability can be prosecuted—but never the mother.

The enforceability of the 1849 law is currently being debated in Wisconsin. Opponents of abortion and conservative legal experts argue that the law is now in effect and bans abortions in almost all cases. On the other hand, nonpartisan attorneys for the state Legislature and supporters of abortion access contend that legal challenges will muddy the waters. Lower-level courts have also argued that the law only applies to infanticide and not consensual abortions. In 2023, a Dane County, Wisconsin, circuit court judge ruled that the 1849 law prohibits foeticide but not consensual abortions.

The political divide in Wisconsin further complicates the matter. The state's attorney general, a Democrat, has vowed not to enforce the 1849 law but cannot stop local officials from doing so. Meanwhile, the Republican-controlled state legislature has passed legislation in recent years restricting abortion access, such as banning abortions after five months of pregnancy and requiring women to receive an ultrasound before the procedure.

The state's Republican-controlled legislature

Wisconsin does not have a trigger law, but the state's Republican-controlled legislature has ensured that the effect is the same. The state law banning abortions, which dates back to 1849, has been allowed to go back into effect following the overturning of Roe v. Wade. This law makes it a felony for any person, other than the mother, to intentionally destroy the life of an unborn child. While it is no longer in effect, it has not been repealed.

The Republican-controlled legislature has refused to take action to repeal the law, despite calls to do so by Democratic Governor Tony Evers, who filed a lawsuit challenging the ban. Evers had previously called a special session to repeal the law, but the Republican-controlled legislature refused to take action. The state's Republican leaders have celebrated the overturning of Roe v. Wade, with Assembly Speaker Robin Vos calling it "a victory for life."

Republican lawmakers in Wisconsin have also passed legislation in recent years that further restricts abortion access. These include bans on abortions after five months of pregnancy, requirements for women to receive ultrasounds and counseling before undergoing the procedure, and a 24-hour waiting period.

The state's Democratic Attorney General, Josh Kaul, has pledged not to enforce the 1849 felony abortion ban. However, Planned Parenthood of Wisconsin has stopped performing abortions in the state, as providers could face future prosecution under a different administration. The lack of access to abortion services in Wisconsin has forced people to seek care in other states, such as Illinois and Minnesota.

The Supreme Court's decision overturning Roe v. Wade

On June 24, 2022, the U.S. Supreme Court officially overturned Roe v. Wade, a five-decade-old decision that had guaranteed a woman's right to obtain an abortion. The ruling gives individual states the authority to set their own abortion policies, with wide-ranging consequences for reproductive rights across the country.

The Supreme Court's decision in Dobbs v. Jackson Women's Health Organization involved a challenge to a Mississippi ban on abortion at 15 weeks of pregnancy. The ruling ended the federal constitutional right to abortion in the United States, with Justice Samuel Alito writing for the court majority that the 1973 Roe ruling and subsequent decisions reaffirming it "must be overruled." Alito characterised the Roe ruling as "egregiously wrong" and "an abuse of judicial authority."

The Supreme Court's decision has had a significant impact on abortion access and reproductive rights in the United States. As a result of the ruling, one in three women now live in states where abortion is not accessible, with 18 states banning or severely restricting abortion in the first few months after the decision. The abortion bans that have taken effect have disproportionately harmed Black, Latino, Indigenous, and other communities of colour, where systemic racism has long blocked access to healthcare and opportunities.

Wisconsin does not have a trigger law, which are laws that immediately ban abortion if Roe v. Wade is overturned. However, the effect is the same: a state law banning abortions, passed in 1849, is now back in effect. This law outlaws abortions except when the procedure is necessary to save the life of the mother. The law is expected to face legal challenges, with nonpartisan attorneys and supporters of abortion access arguing that the answer is not clear-cut.

The Supreme Court's decision to overturn Roe v. Wade has been met with disapproval from a majority of Americans, with 62% saying abortion should be legal in all or most cases. The decision has also sparked concerns about the impact on other rights, with Justice Clarence Thomas suggesting that the legal rationale for the decision could be used to overturn cases that legalized gay marriage and protected the rights of married people to access contraception.

Wisconsin's abortion providers

Wisconsin does not have a trigger law, but the effect is the same. The state law banning abortions is back in effect now that Roe v. Wade has been overturned. However, this law is expected to be challenged in court.

One of the major abortion providers in Wisconsin, Planned Parenthood of Wisconsin, set June 25 as its last day for providing abortions. This was in anticipation of the Supreme Court's decision to overturn Roe v. Wade. Other abortion providers in the state are likely facing similar decisions, as they navigate the legal complexities and uncertainties surrounding abortion care.

Some abortion providers in Wisconsin may continue to offer support and resources to those seeking abortions, even if they can no longer perform the procedure within the state. This may include providing information on out-of-state options and assisting those who wish to travel to states where abortion remains legal. Additionally, organisations such as the Women's Medical Fund, Inc. (WMF Wisconsin) have been supporting Wisconsin residents in paying for abortion care for over 50 years. They also work to educate and organise for improved abortion access.

The current situation in Wisconsin regarding abortion provision is complex and rapidly evolving. While the state law banning abortions is in effect, legal challenges and court decisions could alter the landscape. Abortion providers in the state must stay informed and adaptable as they navigate these challenging circumstances.

The state's Democratic Attorney General Josh Kaul

Wisconsin does not have a trigger law, but the effect is the same as the state law banning abortions is back in effect now that Roe v. Wade has been overturned. The state's Democratic Attorney General, Josh Kaul, has said that he will not enforce any abortion ban. In an interview, Kaul stated that he would not investigate or prosecute anyone for having an abortion should the Supreme Court overturn Roe v. Wade and the currently unenforceable state ban takes effect. He believes that enforcing an abortion ban would undermine public safety and have serious negative health consequences for women.

Kaul's stance on abortion was a concrete example of where the election made a difference in the Wisconsin Department of Justice. His successful reelection campaign against Republican challenger Eric Toney centred on challenging the state's 1849 ban on abortion. Kaul filed a lawsuit challenging the ban after the Supreme Court overturned Roe v. Wade, arguing that the pre-Civil War ban was effectively repealed when the Legislature passed new laws regulating abortion in the decades following Roe. He contends that those newer laws take precedence and that the ban cannot be enforced. Kaul has asked the Dane County Circuit Court to enter a final judgment confirming that Wis. Stat. § 940.04 does not criminalize abortion.

Kaul's lawsuit could take time to make its way through the court system, and it is unclear when the Wisconsin Supreme Court will resolve it. The case is expected to reach the state Supreme Court eventually, but the timing could be critical as the court currently has a 4-3 conservative majority. However, in April, voters will elect a new justice to replace retiring conservative Justice Patience Roggensack, which could swing the ideological balance of the court. Kaul has stated that he will continue working to move the case forward expeditiously as people are being impacted by the ban. He suggests that the Legislature pass a new law repealing the 1849 ban altogether, but this does not seem likely as Republican lawmakers have not expressed interest so far.

Kaul's position on abortion has drawn criticism from his Republican opponents. Fond du Lac County District Attorney and Republican challenger Eric Toney accused Kaul of being a politician, not a law enforcement officer. Another Republican challenger, former state Rep. Adam Jarchow, called Kaul "a wholly owned subsidiary of the Washington DC swamp" and criticised him for putting partisanship ahead of the law. Despite the opposition, Kaul remains committed to protecting reproductive rights and the safety of women in Wisconsin.

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