A lawsuit challenging Wisconsin’s 1849 felony abortion ban, which stopped all abortion services in the state after the U.S. Supreme Court overturned federal abortion rights, is slowly moving forward. A Planned Parenthood Clinic in downtown Milwaukee. (Photo | Isiah Holmes)
Progress on changes to various reproductive care policies in Wisconsin will likely remain stagnant in coming months as Republicans remain divided and Democrats explore other ways of expediting access to care.
As legislators remain stuck on passing bipartisan measures that expand access to birth control and maternal and infant care, a lawsuit challenging Wisconsin’s 1849 felony abortion ban, which stopped all abortion services in the state after the U.S. Supreme Court overturned federal abortion rights, is slowly moving forward.
Democratic Attorney General Josh Kaul filed a motion last week to try to speed up his lawsuit seeking to invalidate Wisconsin’s pre-Civil War felony abortion statute. He requested that the Dane County Circuit Court forgo oral arguments in the lawsuit and declare Wisconsin’s law unenforceable when applied to abortion.
“Women should not be denied the freedom to make fundamental reproductive health-care decisions,” Kaul said in a statement.
Kaul filed the suit in June 2022 in the wake of the U.S. Supreme Court’s decision that overturned Roe v. Wade. Following that decision, abortion providers in Wisconsin stopped services because of the 1849 law, which bans abortion except to save the life of the mother.
Kaul filed the new motion shortly after Wisconsin Supreme Court Justice Janet Protaciewitcz took her seat on the bench — flipping the Court to a 4-3 liberal majority — and after Dane County Judge Diane Schlipper rejected a motion by one of the defendants to dismiss the lawsuit.
A ruling from Schlipper would be the circuit court’s final and binding decision and subject to an appeal to a higher court.
A ruling in Kaul’s favor would likely reinstate Wisconsin’s 20-week abortion ban as well as the web of other laws related to abortion in statute. Kaul’s case, no matter the decision in Dane County, is expected to reach the state Supreme Court.
Republican-led reproductive health bills remain in limbo
As Kaul’s lawsuit has started to progress, state lawmakers have continued advocating for other ways of improving reproductive rights and maternal health outcomes in Wisconsin, though most avenues have led to few substantive policy changes.
A couple of Republican-led bills that would address reproductive health access and that have broad bipartisan support remain in limbo due to division among Republican lawmakers.
One bill, SB 110, would instruct the state Department of Health Services to seek approval from the federal government to expand Medicaid coverage for postpartum women to 12 months — catching Wisconsin up with the majority of U.S. states that have already adopted the expansion. Currently, postpartum mothers on Medicaid in Wisconsin are covered for 60 days.
Arguments in favor of expanding postpartum Medicaid coverage have focused largely on Wisconsin’s lack of abortion access as well as the state’s high maternal mortality rates for women of color.
Rep. Donna Rozar (R-Marshfield), the lead Assembly author of the bill, said it would help address health risks including cardiovascular complications and postpartum depression and also would be a way of encouraging people to not seek abortions.
“If we want people not to abort their babies, we need to support those babies,” Rozar told the Wisconsin Examiner last week. “And the best way to do that is to support the mothers that have those babies, so that we have healthy mothers and healthy babies.
A similar bill was introduced during the 2021 legislative session, but Republican lawmakers opted not to pass that bill and instead applied for a waiver with the federal government to extend coverage to 90 days. Lawmakers never heard back about the waiver. Gov. Tony Evers introduced the expansion to 12-months during the 2019, 2021 and 2023 budget cycles, but Republicans have thrown it out each time.
Rozar said she doesn’t see the bill progressing further in the Assembly for the time being, despite broad bipartisan support.
“The Senate is obviously more interested in moving that forward than the Assembly is at this time,” Rozar told the Wisconsin Examiner. “Sometimes it just takes multiple sessions to get the support. Well, we had a lot of support… My goodness, we had robust bipartisan support, not only from sitting legislators but also from organizations.”
Rozar added that no one spoke against the bill when it was heard by the Senate Health committee in March.
Despite this, Rozar said the bill continues to face opposition from key Republican leaders, and with the policy not being included in the state budget, it’s unlikely to advance this session. Assembly Speaker Robin Vos (R-Rochester) said he opposed the expansion ahead of the conclusion of the budget process because he objected to giving any more “free coverage” to people.
“If you don’t have key leadership support, it doesn’t move forward,” Rozar said. “So you continue to state your case and you can continue to advocate and you can continue to make people aware of the maternal issues that occur postpartum, and you just continue to plug along.”
Rozar said it’s likely that the bill will come back again in a future legislative session.
Another bill that seeks to expand access to birth control allows Wisconsinites over the age of 18 to receive a birth control prescription from a pharmacist rather than a primary care physician. For Republicans, including Rozar, who support the bill, it is another way of decreasing the number of abortions in the state.
The bill recently received a hearing in the Senate for the first time, however, it still faces several obstacles to passage.
Appleton Republican Sen. Rachael Cabral-Guevara’s office confirmed that the bill will be considered during an executive session in the near future.
However, it’s unclear whether the bill would pass the committee or make it to the floor of the Senate, especially as the bill continues to face opposition from some Republican lawmakers and anti-abortion groups. Matt Sande of Pro-Life Wisconsin, one of the groups opposed to the bill, has said his organization will work to prevent the birth control bill from reaching the floor of the Senate.
Democrats propose expansive reproductive care changes
Rep. Lisa Subeck (D-Madison) said she is not feeling optimistic about progress on the Republican-led bills when lawmakers return to session in the fall.
“I think [Republicans] will continue to pay lip service to birth control, but not actually move forward on increasing access to contraception. I don’t expect any changes in where they’re at on abortion. I don’t expect changes on where they’re at on Medicaid,” Subeck said. “It would be great to see some positive change, but I’m not holding my breath.”
Subeck and other Democratic lawmakers have continued advocating for more expansive changes in Wisconsin’s reproductive care policies.
Recently, Democrats sent a letter to the U.S. Food and Drug Administration requesting that the agency approve abortion medication for over the counter use. Subeck said she and Sen. Kelda Roys (D-Madison) began circulating the letter for additional signers around the one-year anniversary of the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision ending federally protected abortion rights.
“What is our next step here as we wait for the lawsuit to be decided?” Subeck said in an interview. “Even once the [Kaul] lawsuit [is] decided, there’s no reason the FDA shouldn’t make medication abortion over the counter. It would prevent people from having to wait for an appointment. Anything that reduces the hurdles and obstacles is good from a reproductive freedom perspective, but it also is good science to make that available.”
In the letter, lawmakers say evidence from the U.S. and around the world demonstrates that medication abortion is safe and highly effective at ending pregnancy, and that increasing access to these medications is an essential part of reproductive care.
Democrats’ request for making abortion medication over-the-counter came on the same day that the FDA approved the first birth control pill for over-the-counter use. Subeck said that the FDA decision was exciting, but emphasized that a lot still needs to be done for expanding reproductive care access.
Subeck, along with Sen. Dianne Hesselbein (D-Middleton), has also introduced a bill that would seek to expand access to contraception by establishing a person’s statutory right to access and a health care provider’s right to provide contraceptives and information regarding contraception.
Subeck also supports the Republican-led bill allowing pharmacists to dispense birth control pills without a prescription. But she said there is a clear need for her bill even after the recent FDA approval of over-the-counter birth control and moderate Republican support for expanded birth control access.
“We still have Republican politicians in our Legislature right here in Wisconsin, who would reduce or even ban birth control if they got their way,” Subeck said, referring to Rep. Chuck Wichgers (R-Muskego), who claimed on the floor of the Assembly that increased access to birth control could lead to more marital infidelity.
“When this is the mentality of our Republican legislators and the organizations that they affiliate, frankly, we need to protect access to birth control properly, we need to recognize that, even as we make advances, that access is still fragile,” Subeck said.
The Democrats’ legislative proposal is unlikely to progress due to opposition from Republican lawmakers.
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