Evers wants referendum on repealing Wisconsin’s 1849 abortion ban

By: - September 21, 2022 1:08 pm
Gov. Tony Evers announces he is calling the Legislature into special session to allow Wisconsin voters to change state laws through referendum, with a focus on amending the state's 1849 abortion ban | Wisconsin Examiner photo

Gov. Tony Evers announces he is calling the Legislature into special session to allow Wisconsin voters to change state laws through referendum, with a focus on amending the state’s 1849 abortion ban | Wisconsin Examiner photo

Standing behind a podium in the ornate governor’s conference room in the east wing of the Capitol on Wednesday morning, Gov. Tony Evers pointed to the ceiling and the gilded words inscribed there that proclaim, “The will of the people is the law of the land.”

“Well, right now, today, when it comes to reproductive freedom, the will of the people isn’t the law of the land. And it damn well should be, folks. It really should,” Evers said. Therefore, he announced, he is calling the Legislature into special session on Oct. 5 to take up a constitutional amendment that would empower voters to repeal state laws through referendum — particularly Wisconsin’s 1849 abortion ban.

Voters in more than 20 other U.S. states, including Michigan, Illinois, and Ohio, already have the power to change state law through the referendum process, Evers noted. (The closest that Wisconsin currently comes is in the process for amending the state constitution, which requires voters to approve the amendment in a referendum, but only after it twice passes the Legislature.)

While the press conference focused specifically on abortion rights, the referendum power Evers is proposing could be used to change any law.

“As of last week this idea has new, bipartisan support in Wisconsin,” Evers added. “I agree with Sen. Ron Johnson — and there’s a sentence for you. If Republican legislators aren’t going to uphold the will of the people, then the people of the state should have the right to take a stand at the ballot box.” 

Evers was referring to a public statement by Johnson that he supports rape and incest exceptions to Wisconsin’s 1849 abortion ban, but that such changes to the law should happen through a “direct referendum” approved by voters. 

Senate Majority Leader Devin LeMahieu (R-Oostburg) and Assembly Speaker Robin Vos (R-Rochester) responded to Governor Evers’ call for a special session Wednesday in a statement saying, “Gov. Evers would rather push his agenda to have abortion available until birth than talk about his failure to address rising crime and runaway inflation caused by his liberal DC allies. Hopefully, voters see through his desperate political stunt.”

Republican legislative leaders have repeatedly refused to take up Evers’ calls for special sessions on a variety of issues, from gun safety to education funding to repealing the 1849 abortion ban.

“For months now we’ve seen Republican legislators sit idly by as we’ve heard story after story, mothers, girls and patients who’ve had to deal with impossible situations trying to access the reproductive health care they need,” Evers said. He added that Wisconsin’s criminal abortion ban, which originated before the Civil War and before women had the right to vote, means “half the people of our state have fewer rights today than they did three months ago, and fewer rights than mothers and grandmothers before them.”

After making his announcement, Evers passed the microphone to Sen. Kelda Roys (D-Madison), who thanked him for his efforts to restore abortion rights in Wisconsin.

“Many of you know I was pregnant last year, and thankfully, everything went well and I have a healthy 1-year-old,” Roys said. “But imagine being pregnant now, with abortion unavailable in Wisconsin, knowing it’s not the right time to bring a child into the world. … Imagine being pregnant now, knowing that something’s gone horribly wrong with your wanted pregnancy, and you go to the emergency room and wait. And you wonder, are the doctors and nurses there doing everything they can immediately to help you? Or are they themselves scared, scared of being prosecuted, and it’s not just losing their medical license or being sued, but being put in prison?”

The Evers administration has filed a lawsuit arguing that a 1985 law allowing abortions up to the point of a fetus’ viability supersedes the 19th century ban.

“Abortion isn’t health care and for the governor and attorney general to try and use the courts to enact law is just as wrong as the original Roe v. Wade decision over 50 years ago,” Vos said in a statement in June when Attorney General Josh Kaul filed the suit.

Republican legislators have since sought a series of extensions, asking for more time to respond and delaying action in the court.

Evers said he had not spoken to legislative Republicans about his proposal. A constitutional amendment allowing a referendum to change state laws would have to pass two sessions of the Legislature before it goes on the ballot.

Asked why he is making his proposal now, Evers pointed to the “difficult decisions that are being made every single day in the state of Wisconsin,” involving women with dangerous pregnancy complications and doctors who are not sure when and how they can treat them. “The time is now because we have people that are struggling right now,” Evers said. “And you’re right, it is going to take time to pass. …  We want to make sure that people understand that we’re working as hard as we can. Right now.”


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Ruth Conniff
Ruth Conniff

Ruth Conniff is Editor-in-chief of the Wisconsin Examiner. She formerly served as Editor-in-chief of The Progressive Magazine where she worked for many years from both Madison and Washington, DC. Shortly after Donald Trump took office she moved with her family to Oaxaca, Mexico, and covered U.S./Mexico relations, the migrant caravan, and Mexico’s efforts to grapple with Trump. Conniff is the author of "Milked: How an American Crisis Brought Together Midwestern Dairy Farmers and Mexican Workers" which won the 2022 Studs and Ida Terkel award from The New Press. She is a frequent guest on MSNBC and has appeared on Good Morning America, Democracy Now!, Wisconsin Public Radio, CNN, Fox News and many other radio and television outlets. She has also written for The Nation, The New York Times, The Washington Post, and The Los Angeles Times, among other publications. She lives in Madison, Wisconsin with her husband and three daughters.