Access to pregnancy options in Wisconsin: Big opportunities, big challenges

Update: Gov. Tony Evers vetoed SB-394 on Friday, April 15.

Ready for some good news? 

Maryland legislators this week pulled together in a spirit of reproductive justice and allowed expanded access to abortion health care. Health practitioners beyond physicians — including nurse practitioners, midwives and physician assistants — may now perform abortions. And that’s not all: the bill designated $3.5 million toward a multi-site training program each year to “expand the number of health care professionals with abortion care training and increase the racial and ethnic diversity among health care professionals with abortion care training.” About 20 states now allow non-physician clinicians to perform abortions.

Why is this news good news for Wisconsin? 

Because, in terms of both reproductive justice and access to primary health care, we sit this very minute at a crossroads. Will our state take a Maryland direction, or a Texas one?

The APRN Modernization Act (Senate Bill 394 and Assembly Bill 396) lands on Gov. Tony Evers’ desk today. The Act is remarkable both for its bipartisan support in our state’s divided Legislature and for its ability to significantly expand access to primary health care across the state. 

The Act would allow Advanced Practice Registered Nurses (APRNs) to practice independently at the full potential of their training and skill set. Two dozen other states allow full-scope APRN practice. Yet supporters of the Act fear that Gov. Evers will veto it, most likely because powerful physician groups officially oppose it. (Read more about the turf battle in a local op-ed that we authored here.)

One important potential of permitting full-scope APRN practice is expanded options for handling miscarriage. Early pregnancy loss is common, occurring in about one in four pregnancies. By permitting APRNs to prescribe the medications mifepristone and misoprostol, more people may be offered the option of a safer, more effective way to manage a miscarriage, while avoiding invasive procedures. As a protective, evidence-based option, medically assisted miscarriage should be available everywhere. 

Passage of the APRN Modernization Act would empower APRNs to prescribe medications for people experiencing miscarriage, but it would not allow APRNs to prescribe the same safe and effective medications for abortion. This is because of a “physician-only law” in Wisconsin that arbitrarily (politically) restricts abortion health care to physicians. 

Back to the crossroads. Another highly anticipated legal decision involves Planned Parenthood of Wisconsin v. Kaul.

This federal lawsuit was filed in 2019 by Planned Parenthood of Wisconsin (PPWI) against Wisconsin Attorney General Josh Kaul to challenge the physician-only law, as well as two related laws, also found in other states: 1) the “same-physician law” that requires patients seeking abortion to see the same physician at two state-mandated clinic visits at least 24 hours apart; and 2) the “physical presence law” that requires the physician to be physically present when abortion pills are handed to a patient.

PPWI argues that specialized Advanced Practice Nurses already legally perform primary reproductive health care — from common contraceptive and diagnostic procedures to managing miscarriage, labor and birth. PPWI argues that the same-physician law makes abortion center staffing and scheduling unnecessarily difficult, in turn prolonging waiting periods. Finally, the physical-presence law prevents telehealth abortion care. Telehealth is a safe option for pill abortion that is available in other states and countries and that can secure access in challenging times — such as during a pandemic, or for people who face distance and other logistical barriers to healthcare.

In 2020, Justice William Conley heard the Wisconsin case and acknowledged “there’s really no evidence of medical benefit for any of these three restrictions,” and that they impose “a substantial burden.” But he still has not ruled. This may be due in part to the pending Dobbs case that could overturn Roe v. Wade, making abortion illegal in Wisconsin and rendering the PPWI case moot. 

Playing roulette at the crossroads, the Dobbs v. Jackson Women’s Health Organization asks the U.S. Supreme Court to uphold Mississippi’s 15-week abortion ban, as well as to overturn Roe v. Wade and rule that there is no right to abortion under the U.S. Constitution. The Court will issue a decision before the end of June.

The Court can take one of three main paths: 

1. Mississippi’s 15-week ban is allowed to go into effect, but the Court does not say “Roe v. Wade is overturned.” In states like Wisconsin with a Republican-led legislature, we can expect moves to ban abortion earlier than the current 20 weeks and more restrictive barriers to abortion access generally.
2. Roe v. Wade is explicitly overturned, and Mississippi’s 15-week ban goes into effect. Abortion law reverts to the states. In Wisconsin, we can expect the Republican-led Legislature to move to enforce a standing 1849 total ban on abortion, where anyone helping a person access abortion could be prosecuted and a physician performing abortion, even in the case of rape or incest or to save the life of the pregnant person, would face felony charges. 
3. Mississippi’s 15-week ban remains blocked, and the status quo is preserved. This is the least likely scenario. In states like Wisconsin, the status quo means that access to abortion remains riddled with harmful obstacles, especially for BIPOC and under-resourced communities.

We know that women die under restrictive abortion laws. After a well publicized death in Ireland in 2012, human rights groups organized to legalize abortion there, and abortion is easier to access in Ireland now than it is in most places in Wisconsin.  

Wisconsin has a chance to move in the direction of   Maryland (or Irleand) if Evers signs the APRN Modernization Act.