Without Roe standing, abortion is a felony in Wisconsin

As the landmark Supreme Court Roe v. Wade ruling closes in on its half century anniversary, there is heightened concern among reproductive choice advocates that the 49th anniversary it marked on Saturday could be its last.

“While I hope and pray that a year from now we will be celebrating the 50th anniversary of Roe, I fear that we will instead be mourning its loss,” says Rep. Lisa Subeck (D-Madison), who has spent much of her career working on women’s health issues. “New limitations or even a complete reversal of Roe v. Wade is a very real possibility and, in fact, likely.”

The current composition of the U.S. Supreme Court — which former President Donald Trump filled with anti-abortion justices — is expected to rule early in the summer on the Mississippi 15-week-ban after hearing oral arguments in December. The Supreme Court already showed its hand by repeatedly allowing a law to stand in Texas that has, overwhelmingly, banned abortions in that state, causing people to travel to Oklahoma and other states that still permit abortion.

Subeck is the Assembly author of the Abortion Rights Preservation Act bill which would simply cross out a 172-year-old statute that makes providing an abortion a felony in Wisconsin. The penalty for providing an abortion under that old law is up to six years in prison and a fine of up to $10,000 — and that old law, like the new law in Mississippi, provides no exception for victims or rape or incest.

Democrats are calling for the immediate passage of the Abortion Rights Preservation Act — something they know they will never get under Republicans in the Legislature. “Abortion should be safe, legal, and accessible without judgment,” says Subeck. “The OB/GYN’s office is one place you do not want to see your representative, senator or a Supreme Court justice.”

That 1849 law from the time of statehood will become enforceable again without Roe. Attorney General Josh Kaul told the Associated Press in December that he did not plan to prosecute people seeking or providing abortions.

Planned Parenthood is one of only two abortion providers in the state and the only provider with an abortion clinic outside of Milwaukee. Tanya Atkinson, president of Planned Parenthood Advocates of Wisconsin, when asked if they would still provide abortions if the Supreme Court overturns Roe but the 1849 law is not being enforced responded that they could no longer offer abortion services, saying, “Planned Parenthood follows the law.”

Atkinson calls Wisconsin’s abortion ban “even worse than what we are seeing in Texas,” because “abortion at any point in pregnancy could immediately become a crime — with no exceptions for rape, incest or the health of the pregnant person.”

“There is no exception in that abortion ban for victims of a crime,” confirmed Kaul at a Capitol news conference on Thursday. Kaul, labeling the Wisconsin law “draconian” told attendees, “You’ve heard about the six-week abortion ban in Texas —  there are no six weeks; it is a full ban throughout the pregnancy.” The only exemption is for “self-administered abortions,” he said. Also dangerous, he said, is that in addition to doctors and other health care workers being prosecuted for care they have been able to provide for nearly half a century, a friend or spouse who drove someone to get an abortion could also be prosecuted under that law.

Atkinson says people most likely to be hurt by the ban are the ones already harmed by current obstacles and restrictions: “Black, Latino, and Indigenous people most, and these communities stand to lose the most if Roe is overturned. In a country where Black women are three times more likely than white women to die from largely preventable pregnancy-related complications due to racism and discrimination in care, pregnant people could be forced to carry to term against their will and risk their lives in the process.”

Sen. Kelda Roys (D-Madison), the co-author of the Abortion Rights Preservation Act is another legislator who has worked on women’s reproductive rights for years before becoming an elected official. She too fears Wisconsin is about to fall under the archaic statute outlawing abortion.

“I don’t think we’re going to get a 50th anniversary of Roe v. Wade,” says Roys. As she sees it, Roe has already been overturned in practice in Texas.

“It’s somewhat disingenuous to say that Roe v Wade is still standing right now because the Supreme Court has thrice allowed a blatantly unconstitutional abortion ban in Texas to stand,” Roys adds. “And when women in a state in the Union cannot access legal abortion, it’s hard to really say that Roe is functional or is still in effect.”

On Thursday, the Supreme Court prevented the extreme abortion ban that took effect last September in Texas, known as SB 8, from proceeding in district court, thus stalling what has amounted to a near ban at the Texas Supreme Court.

“This case is a disaster for the rule of law and a grave disservice to women in Texas, who have a right to control their own bodies,” wrote Justice Sonia Sotomayor in scathing dissent, later adding “I will not stand by silently as a State continues to nullify this constitutional guarantee.”

Pro-choice groups often stress that even current case law, including Roe, offers a minimum of protection for abortion rights. Roe has not stopped states — including Wisconsin — from mandating a lengthy list of provisions that abortion providers must abide by that are not medically necessary.

Gov. Tony Evers told participants in a news conference on abortion rights on Thursday that citizens have become “too comfortable relying on the court to protect access to reproductive health care,” adding. “We should trust women to make decisions about their bodies and their health care, and we should be working to make sure that all Wisconsinites have access to quality, affordable health care, including reproductive health care. As long as I am governor, that’s what I’ll do.”

Women’s health landscape in 2023

On Dec. 1, 2021 the Supreme Court heard oral arguments in the Dobbs v. Jackson Women’s Health Organization case, which bans abortion after 15 weeks of pregnancy, before many women even realize they are pregnant. Attorneys on both sides of the abortion debate say it is the most consequential abortion rights case to come before the count since not only 1973’s Roe v Wade but another abortion-rights affirming case, 1992’s Casey v. Planned Parenthood.

Justice Amy Coney Barrett, who was heralded by Trump as resolutely anti-abortion, was seated in Sept. 2020 bringing the Supreme Court to a 6-3 anti-abortion majority, so its acceptance of the Mississippi case is widely viewed as its chance to overturn Roe and Casey.

The court could overturn Roe or gut Roe and leave it up to states to decide whether to allow abortions and in what circumstances. Then what?

“Someone facing an unintended or untenable pregnancy will not have safe and legal access to abortion in our state,” forsees Subeck. “Making abortion illegal will not eliminate the need for this vital health care service, but it will endanger the health and lives of Wisconsinites who are left with no safe and no legal means to terminate a pregnancy.”

Roys agrees: “I think that means that a lot of people who need abortion services are going to be going to Illinois and Minnesota, which both protect abortion rights. They’re sanctuary states.”Wisconsinites, Roys believes, will turn their efforts “towards helping to raise money and handle the logistical challenges of travel for women. So just like we’ve seen with women in Texas, going to Oklahoma and other states, we’re gonna see that here in Wisconsin.”

She also hopes there will be political ramifications — particularly in what is increasingly being seen as a swing vote in Wisconsin: suburban women — “in helping encourage the suburbs to keep turning blue. As women see that Republicans have real contempt for our humanity and our freedom and moral agency.”

Democratic Party of Wisconsin Chair Ben Wikler believes abortion rights will play a central role in the campaign for governor. “Rebecca Kleefisch has already vowed to sign a Texas-style abortion ban and has even agreed rape survivors should ‘turn lemons into lemondade.’ If we want to protect access to health care, we need to re-elect Gov. Evers.”

Kaul believes the court is poised to overturn Roe, which would lead to “significant uncertainty about the state of the law,” as litigation results in legal chaos.

“Almost immediately there will … be litigation over what the state of the law in Wisconsin is, whether the state Constitution or other state laws have an impact on whether abortion is criminalized in Wisconsin. And so there will be significant uncertainty about the state of the law. That’s cold comfort for people in Wisconsin who need to access reproductive health services, because doctors and other providers are going to be put in the impossible position of potentially putting their careers at risk and potentially being prosecuted for a felony for engaging in what had been understood to be a constitutionally protected right for nearly half of a century.”

Rep. Dianne Hesselbein (D-Middleton) agrees with her colleagues, calling a post Roe v. Wade country “horrifying,” but says she wants to believe that she’ll see the landmark case standing next year on its 50th anniversary and adds, “I hope my children see it standing for its 100th anniversary.” She adds, “We cannot live in a state that punishes people for seeking essential health care in this way.”

Wisconsin Alliance for Women’s Health founder Sara Finger is pushing her supporters to vote, campaign and learn all they can about what’s at stake if the U.S. Supreme Court overturns or decimates Roe, which would likely happen this summer.

She points to the Abortion Rights Preservation Act to appeal the 1849 abortion ban in Wisconsin and the federal Women’s Health Protection Act (WHPA), authored by Wisconsin Democratic Sen. Tammy Baldwin and would protect access to abortion without medically unnecessary restrictions such as mandatory waiting periods, counseling with pre-written, biased scripts and other mandates such as waiting periods, two separate appointments with the same doctor or ultrasounds.

Wisconsin has had all of those requirements added to its laws, plus other restrictive measures that were signed into law while Scott Walker was governor and Republicans controlled both legislative houses. Over the past year, nationwide, WAWH’s website states that 600 abortion restrictions were introduced — 90 of which were enacted.

Wisconsin Republicans have sent a number of anti-abortion bills to Evers, who has vetoed them all — some of them twice.

“The stakes are higher than ever, with the health and autonomy of women and families across the country hanging in the balance,” Finger told supporters in an email. “It’s time to sound the alarm and make clear: decisions about our bodies, our health care and our future belong to us!”