MMore than two dozen states are on the verge of banning abortions if the Supreme Court overturns Roe vs. Wade. Then there’s Wisconsin, where a politically divided government, a hotly contested election season, and a 173-year-old law that criminalizes nearly all abortions create a potentially chaotic post-Roe landscape.
The prospect of a restoration to 1849 status has upended the Midwestern swing state. Wisconsin’s attorney general, a Democrat, has vowed not to enforce it, but can’t stop local officials from doing so. And while Democratic Gov. Tony Evers supports repeal of the law, Republicans control the state legislature, where such efforts will go nowhere. On the other hand, GOP lawmakers are unable to further restrict abortions in the state due to Evers’ veto power.
It’s a reality that is rapidly reshaping Wisconsin’s already competitive races for governor, attorney general and U.S. Senate ahead of the Aug. 9 primaries.
“It changed Wisconsin politics in the snap of a finger,” says Mordechai Lee, a professor of urban planning at the University of Wisconsin-Milwaukee and a former member of the state assembly and senate. “The fall elections will be a referendum on abortion.”
Wisconsin is one of 10 states with a pre-existing law banning abortion. All of these laws were struck down after Roe v. Wade of the 1973 Supreme Court granting a constitutional right to abortion. But if the court overturns that decision this summer — as a leaked draft, first reported by Politico, suggested — those laws will automatically be reinstated. Thirteen red states also have so-called trigger laws that would immediately ban or restrict abortion rights if such a ruling were made.
Wisconsin law is particularly strict. This constitutes performing or assisting an abortion as a Class H felony, punishable by up to six years in prison. The consequences are even more serious for the abortion of a “fast-born child”, meaning a fetus that can move in the womb – a class E crime punishable by 10 years in prison. The law allows abortions only when the mother’s health is in danger. It does not include any exemptions for victims of rape or incest.
It didn’t take long after the draft notice leaked for the battle lines to emerge in Badger State.
Attorney General Josh Kaul, Wisconsin’s top law enforcement official, said his office would not enforce the 19th Century law and urged local officials not to either. His main Republican challenger said he would enforce it.
It’s a similar dynamic in the gubernatorial race, where the winner would largely determine whether Republicans can impose even tougher restrictions on abortions once Roe is forced out. Evers, 70, is currently the only defense against lawmakers tightening restrictions on abortion access. Last year he vetoed five such bills that were sent to his office. He also leads a coalition of 17 governors urging Congress to adopt a national right to abortion.
Several Republican gubernatorial candidates made it clear this week that they would support enforcement of the 1849 Act if elected. “The left wants to enforce mob rule and further degrade law and order in Wisconsin,” said Kevin Nicholson, one of the leading GOP candidates. “Wisconsin needs new leadership – leaders who will uphold the law and protect the lives of innocent people.” Another candidate, former Lieutenant Governor Rebecca Kleefisch, celebrated the leaked decision. “It was time !” she tweeted.
Observers close to Madison suspect a Republican in the governor’s mansion would support the legislature in passing even tougher restrictions to update the pre-Civil War law, such as adding language prohibiting the use abortion pills. “It’s a murky area of the law that they may want to address,” says David Canon, a political science professor at the University of Wisconsin-Madison.
“That’s how the race for governor comes into play — stopping any additional legislation that would make abortion access even more difficult,” Canon added.
More than 60% of Wisconsin residents support legalizing abortion, according to a poll conducted by Marquette Law School over the past 10 years. And conventional wisdom has already formed that the reversal of deer would energize key Democratic constituencies, especially women and youth.
Wisconsin GOP strategists, however, insisted that the electorate would care more about the economy than access to reproductive care. “It’s going to energize the Democratic base in the short term, but in the long term people are still going to vote on pocket issues: inflation, gas prices, food prices, immigration and crime,” said Bill McCoshen, who served as chief of staff to former Wisconsin Governor Tommy Thompson.
If Roe is knocked down, Lee predicted the media would look for “case number one—a woman who wanted an abortion but couldn’t afford to go to Chicago or Minnesota and had to have the child.”
“I don’t know what’s going to happen before November, but I don’t think voters will need to see any lawsuits to feel strongly about the issue,” he added.
The leaked draft notice could also become a galvanizing force in the race for the U.S. Senate, where Republican incumbent Ron Johnson is up for re-election. On Wednesday, he said the project’s content represented the “right decision”. The three leading Democrats running to overthrow him have pledged to support codifying abortion rights into federal law.
One of those Democrats, Sarah Godlewski, is currently Wisconsin State Treasurer, an elected office. She was visiting Washington, DC, this week for a conference hosted by Emily’s List, an organization that, ironically enough, works to elect women who support abortion rights. She and a friend heard about the leak on Monday evening while driving to the house where she was staying. Almost immediately, she said, they turned around and headed for the Supreme Court.
As she stood outside the courthouse that evening among hundreds of others, she highlighted the practical implications in her state, where access to abortion had once again become under threat. “What frustrates me is that we’ve had 50 years to codify this into law,” Godlewski said in an interview, raising his voice above the roar of chanting. “The Democrats got the House, the Senate and the White House, and yet we didn’t make it. Now we’re waiting for the last hour to try to put something together. Enough is enough.”
It didn’t take him long to do deer a central issue of the campaign. On Thursday morning, she debuted her first abortion-related ad of the mid-season.
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