Abortion In WI Up To Lawmakers, Prosecutors If Roe V. Wade Overturned

WISCONSIN — Reproductive rights in Wisconsin could be decided by politicians and local prosecutors if the U.S. Supreme Court throws out Roe v. Wade, advocates and legal experts said.

A draft opinion leaked to Politico showed the federal court poised to overturn Constitutional protections for abortion, leaving Wisconsin with a 1849 statute still on the books that could outlaw the practice statewide.

If it went into effect, the law would define an unborn child as "human being from the time of conception until it is born alive" and make performing an abortion a felony for anyone other than the mother. The law's single exception is for abortions necessary to save a mother's life.

But it's not a done deal, National Institute of Reproductive Health President Andrea Miller told Patch. There are 13 states with so-called trigger laws that would restrict or ban abortion outright if the 1973 ruling is overturned, but Wisconsin is not one of them.

"Wisconsin has pre-Roe statutes, but it's a question of how it will play out," Miller said.

For example, legislators could repeal or amend the law, and local prosecutors could choose whether to enforce it. Attorney General Josh Kaul announced earlier this month that he wouldn't prosecute people who violate the ban, Wisconsin Public Radio reported.

The state of reproductive rights in Wisconsin depends on whether prosecutors will enforce restrictions and their interpretation of the law, University of Wisconsin law professor Miriam Seifter agreed.

She told Patch that the law has been amended at least 10 times since its inception and has been reinterpreted multiple times in court. In a 1994 case, for example, a man was charged under the section when he was accused of assaulting a pregnant woman and killing her unborn child.

Though some Democratic lawmakers in Wisconsin have vowed to repeal the law, that's unlikely to happen under a Republican-controlled Legislature.

And though the state's Democratic governor, Tony Evers, has promised to "fight for reproductive freedom" and veto any legislation that threatens access to health care, there's little he can do alone. He can't veto a law that's already been passed, or override the law by executive order.

A change would have to go through both houses of the state legislature, but voters can leverage their power at the ballot box, Siefter said.

Former lieutenant governor Rebecca Kleefisch, a Republican hoping to challenger Evers for the governorship, would oppose abortions even in cases of rape and incest, she said in an interview with Fox 6 Milwaukee.

If state legislators fail to amend the law, or prosecutors begin indicting providers, people in Wisconsin would have to make expensive trips to other states for the care they need, Miller told Patch.

Abortion is legal in Illinois and Minnesota, but the latter requires mandatory counseling and a 24-hour waiting period.

"Everyone will be impacted by bans — anyone who can get pregnant and their family members," Miller said, adding that people of color and rural residents, who already have limited access to abortion, will be especially burdened.

With abortion rights on the chopping block, Wisconsin Alliance for Women's Health executive director Sarah Finger told Patch that other rights could be in danger as well: contraception, same-sex marriage and gender-affirming health care.

"We don't know the scale of the consequences yet, but it could end with a lot of people giving birth to babies they can't afford," Finger said, adding that a rash of unplanned births could impact food and housing security across the Badger State. "This is the worst case scenario, and it's coming to life."

Finger encouraged anyone who supports abortion rights in Wisconsin to call their state representatives.