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Governor Evers Attempt to Overturn Wisconsin’s Pre-Roe Abortion Ban
Wisconsin Right to Life | 10 July 2022
The effort to protect the preborn in Wisconsin began just months after Wisconsin became a state in 1848.
In 1849, the first law was passed to protect preborn children.[i] At that time, the law referred to the killing of a "quick child," which meant when a pregnant woman felt the movement of her preborn baby, typically near the midpoint of gestation. Just a few short years later, in 1858, the law was updated to remove "quick" so it was left with “child” only, and then later added “unborn child” and included a definition.
In the years since then, following the Supreme Court decisions in Roe v Wade, Doe v. Bolton, and Planned Parenthood v Casey, additional pro-life laws have been enacted, but none of them came close to the full protections that were offered in the 1849 statute. Many of the laws were to protect those looking to obtain an abortion with some also banning when an abortion can be performed or the type of abortion procedure being banned. Whether it was reporting requirements, parental notification, ‘woman's right to know,’ or, more recently, banning abortions after a preborn baby can feel pain. All of them were written in the post-Roe ruling world and were limited in their effect.
Because of Roe v Wade, Wisconsin's 1849 state statute, s.940.04,[ii] was unenforceable until the recent Dobbs v. Jackson Health opinion, which returned the abortion decision to the states. The day the Dobbs opinion was released, all four abortion facilities in Wisconsin ceased performing abortions, and have not provided them since. While they remain open to provide other services and refer for abortions across state lines, we are currently experiencing an abortion-free state for the first time in almost fifty years.
But our pro-abortion elected officials aren’t giving up so easily. Even when the abortion ban was unenforceable, state senators and representatives introduced legislation to try and rescind the law. Each session, Wisconsin Right to Life worked to ensure those efforts failed. Additionally, pro-abortion state senators and representatives have repeatedly introduced legislation that would repeal 940.04 and further codify abortion access in that state.[iii]
After the Dobbs opinion was released, Wisconsin Governor Tony Evers, in yet another attempt to overturn the abortion ban, called for a special session to eliminate s.940.04.[iv] Unfortunately, like most of the special sessions called in Wisconsin, this was simply another political move to change the narrative of a governor who is losing support during an election year. Thankfully, we have pro-life majorities in both the State Senate and Assembly. The Senate and Assembly gaveled in their sessions and immediately gaveled out without any discussion on the issue. Without a pro-life majority in both of these houses, the outcome would have looked very different.
Governor Evers has a history of calling special sessions when his poll numbers are dropping, or when a mid-term election is coming. He also has his own election this fall. There is a strong possibility that saving lives from abortion will now become one of the many issues Wisconsin voters will consider as they head to the polls this November.
When the Governor’s special session failed to protect abortion through legislation, he took his fight to the court system with the Attorney General's assistance.
Just days after the Dobbs decision was returned and Wisconsin's law went into effect, Wisconsin Attorney General Josh Kaul filed a lawsuit in Dane County against members of our state legislature.[v] The location where the lawsuit was filed was certainly chosen to benefit the outcome of the case.
The arguments within the lawsuit, as well as the plaintiffs of the suit, are both questionable.
The plaintiffs include Attorney General Josh Kaul, The Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board, and Sheldon Wasserman, the Chairperson of the Wisconsin Medical Examining Board. The defendants are The President of the Senate, Chris Kapenga, Senate Majority Leader Devin LeMahieu, and Speaker of the Assembly Robin Vos.
The argument the suit makes is one of consistency. It alleges that laws passed post-Roe now conflict with our pre-Roe ban on abortion, which make it unenforceable. All the laws passed post-Roe fit within the constitutionality of the world that we were living in at that time, yet the pro-abortion elected officials continue to fight against any protection we have in place for preborn children.
Interestingly, the filing cites the admitting privilege law, which was found unconstitutional by the 7th Circuit Court of Appeals.[vi]
It is questionable if the plaintiffs even have the standing to bring a suit against the abortion ban. None of the plaintiffs are abortion providers nor operate a business with abortion providers.
The continued argument remains that for decades, women have relied on abortion as part of their reproductive healthcare. Also, in the filing against the Wisconsin ban on abortion, the plaintiffs declare that abortion is a constitutional right for women. (However, as noted in the Dobbs opinion by the United States Supreme Court, there is no constitutional right to abortion, nor is there a deeply embedded history of abortion in America.)
The pro-abortion industry, lobbyists, and elected officials in Wisconsin will not stop their efforts to overturn our pre-Roe protection of children. For nearly the last 50 years, pro-abortion advocates have not had to work hard in Wisconsin to have full access to abortion. For now, they will take every avenue available, whether it's through executive action, legal action, or elections.
Right now, there are zero abortion clinics open to provide abortions in the state of Wisconsin. However, our fight is not over. It is just the beginning. Our work to protect the preborn and their mothers from the pain of abortion will continue as long as there are women who are led to believe that abortion is the best or only option. And it will continue until our elected officials recognize the value of preborn life and do more to facilitate real, life-affirming healthcare and support for women and families.