Sen. Mary Felzkowski (R-Irma) at a March press conference announcing a Republican bill that would add rape and incest exceptions to Wisconsin’s 1849 abortion ban. (Baylor Spears | Wisconsin Examiner)
Update: This story has been updated to include comment from Sen. Devin LeMahieu.
Republican lawmakers unveiled a bill Wednesday that would add rape and incest exceptions to Wisconsin’s 1849 abortion ban, which says anyone who intentionally destroys the life of an unborn child could be charged with a felony, and clarify language about medical exceptions.
The announcement of the bill, which is unlikely to become law, comes just three weeks before the consequential election for a seat on the state’s Supreme Court. Democrats said they would not support the measure, and the Senate’s Republican leader also threw cold water on the proposal.
Assembly Speaker Robin Vos (R-Rochester) said the authors were introducing the bill because the Legislature is where decisions about Wisconsin’s abortion law should be made, rather than allowing the Supreme Court to be a “super Legislature.” He said the way to advance the bill starts with electing conservative former Supreme Court Justice Dan Kelly over liberal Judge Janet Protasiewitcz in April.
“The first hope is that Dan Kelly wins the election so that we have a Legislature that actually is the place where political decisions are made, not the state Supreme Court,” Vos said at a Wednesday morning press conference called by GOP lawmakers. “I think that is hopefully step one for this to occur. I would say more importantly, we should not turn to the Supreme Court to become a super Legislature. The founders didn’t intend it to be that way.”
Democratic Gov. Tony Evers said in a statement Wednesday that he would not sign the bill, if passed. “I’ve been clear from the beginning — I won’t sign a bill that leaves Wisconsin women with fewer rights and freedoms than they had before the U.S. Supreme Court overturned Roe,” Evers said.
Evers supports a case filed by Attorney General Josh Kaul that asks the Dane County Circuit Court to provide clarity on state abortion law by declaring the 1849 ban unenforceable due to its conflict with statutes enacted after it. The Republicans’ exceptions bill could be seen as potentially weakening the case, which could one day be heard by the state Supreme Court.
The bill, co-authored by Sen. Mary Felzkowski (R-Irma) and Rep. Donna Rozar (R-Marshfield), would update Wisconsin’s pre-Civil War ban so it doesn’t apply to victims of rape or incest during the first trimester of pregnancy. It doesn’t include requirements for a police report, as Vos previously indicated was possible.
“Is this an ideal bill?” Rozar, a staunch opponent of abortion rights, said. “No, it’s not an ideal bill because we should be protecting all life, but this is not an ideal world. This is a world where bad things happen, tragic things happen, horrific things happen to people. We have 10-, 11-, 12-year-old victims of rape and incest. It’s very dangerous for them to carry a pregnancy to term. It’s in the best interest to put these exceptions on there.”
The bill would also clarify the ban’s “life of the mother” exception, which many have called confusing and vague.
According to the draft of the bill, medical exceptions would apply when pregnancy would present a serious risk of death or irreversible physical impairment of a major bodily function for the pregnant woman or when the fetus has no chance of survival. This includes physical conditions — like anembryonic and ectopic pregnancies — that makes survival of the fetus outside of the uterus not possible, the draft states. The ban would also not apply to the removal of a fetus that no longer has a heartbeat.
Lawmakers said the decision to update the ban is a result of feedback from constituents and physicians. Felzkowski said a woman called her office a month ago and spoke about having to go out of state to terminate a wanted pregnancy because the fetus wasn’t viable.
“What did that mean to them? Number one, it was a tragedy of losing the child, but then it was lost income from work, the additional cost of traveling out of state, and the financial burden because now she’s out of network,” Felzkowski said during the press conference. “That is not what Republicans want for our constituency.”
A majority of Wisconsinites support rape and incest exceptions, according to polls conducted by Marquette University Law School. In a November poll, 84% of people — including 73% of Republicans polled — said Wisconsin should allow a woman to obtain a legal abortion who becomes pregnant as the result of rape or incest.
“We are empowering the moms and the fathers who are trying to have children to work with their medical providers to make sure that they have the healthiest viable baby,” Felzkowski said. “And that mom’s life is protected in the process.”
Felzkowski said Republicans do not currently have the 17 votes they would need to pass the bill in the Senate. Vos said Assembly Republicans haven’t counted votes, but he is confident that they could get to the 50 needed to pass the bill.
“The idea is that we want to make the need for abortion rare. There is no one in our caucus who believes that we should be having abortion for birth control,” Vos said. “I think we will get the votes.”
Senate Majority Leader Devin LeMahieu (R-Oostburg) said Wednesday afternoon that the bill would not be considered on the Senate floor. LeMahieu criticized Evers’ response Wednesday afternoon, saying Evers’ priority is politics, not the well-being of Wisconsin’s mothers.
“This is not a topic to use as a political football. It takes careful consideration; speaking to our constituents and our families,” LeMahieu said in a statement. “Further discussion on this specific proposal is unnecessary. The bill will not be considered on the floor of the Senate.”
Vos said he’s hoping Democrats are willing to work with Republicans on the potential update, but Democratic lawmakers criticized the proposal on Wednesday, saying it’s an attempt to cover up Republicans’ positions that are out of line with the public before the upcoming election.
“Republicans have had opportunity after opportunity to restore comprehensive access to reproductive healthcare in Wisconsin and they continue to refuse to do so,” Assembly Minority Leader Greta Neubauer wrote on Twitter. “This bill is a disingenuous attempt to cover up their out of touch position in advance of the April 4th election.”
Senate Minority Leader Melissa Agard (D-Madison) said in a statement that “legislation that does not provide a woman with autonomy of her own body and her own healthcare decisions” is a “nonstarter” for Senate Democrats.
“Republicans are simply flailing after suffering unexpected defeat during last year’s midterm elections, in large part because of their draconian position on abortion access,” Agard said. “The proposed legislation is misguided and wholly inadequate. They are sorely mistaken in their hopes that it will placate Wisconsin women.”
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