Wisconsin will criminalize abortion if Roe v. Wade is overturned

In a leaked draft opinion, published by Politico, a majority of the U.S. Supreme Court voted to strike down Roe v. Wade.  

If Roe is overturned, Wisconsin’s criminal statute from 1849 will become state law again, criminalizing abortions unless it is “necessary, or is advised by two other physicians as necessary, to save the life of the mother.”  

It has been unenforceable since the Roe v. Wade decision in 1973 recognized a constitutional right to abortion early in a pregnancy.   

“The issue with the (1849) law is that it’s super old and hasn’t really been revisited much by the state legislature,” said Sara Benesh, associate professor and chair of the Political Science Department at the University of Wisconsin-Milwaukee. 

In Wisconsin, district attorneys would be able to prosecute an abortion case. 

Wisconsin Attorney General Josh Kaul said he would not enforce any bans on abortions if Roe v. Wade were overturned. Kaul faces reelection in November.

Abortion access in Wisconsin 

The only in-clinic abortion providers in Wisconsin are in Milwaukee and Madison. Medical or prescription-induced abortions are available in Sheboygan. 

Benesh said the state law does not say anything about those kinds of medication abortions.  

“So there would probably be some litigation maybe over that and there could also be some litigation about where we can bring these lawsuits,” said Benesh. “If a more conservative district could bring a lawsuit against a provider that was in Madison or Milwaukee if one of their residents were to travel there, those kinds of questions would still need to be litigated.”     

The 1849 law does not subject a woman who is obtaining an abortion to any sort of criminal liability. It focuses on the provider, but the degree to which that law would be enforced is in question, Benesh said.  

Advocates worry the overturning of Roe will uproot other landmark cases

President Joe Biden said on last Tuesday that if Roe is overturned more rights will be in question. 

“If it becomes a law and if what is written is what remains, it goes far beyond the concern of whether the right to choose,” said Biden.  

Biden said there can be limitations on the right to privacy, but it cannot be denied.  

However, in the draft opinion, Alito said the decision to overturn Roe v. Wade would not apply to other privacy cases. 

Benesh thinks Alito’s argument is that the focus is not on privacy, but on abortion.  

In the draft opinion, Chief Justice Samuel Alito wrote that the right to abortion is not “deeply rooted in the nation’s history and tradition.” 

Benesh said once they recognize a right to privacy as being relevant to this case, then they will not talk about whether privacy exists in the Constitution. Then they will talk about whether abortion exists in the Constitution.  

“Then I think it’s really easy to say, okay, if we’re going to say no, abortion doesn’t exist as a historically rooted constitutional right, which of course it doesn’t because we know there were abortion statutes in the 1800s, then we’re going to definitely say that same-sex marriage doesn’t exist as a constitutional right,” said Benesh.  

She mentions that the Bowers v. Hardwick case started out with the same approach.  In the Bowers v. Hardwick case, the U.S. Supreme Court upheld a Georgia state law banning sodomy in 1986.  

“The court’s question wasn’t whether two people who were consenting adults that want to engage in some sort of sexual activity have a right to that, instead what they focused on is, is there a historical protection for a right to homosexual sodomy?” said Benesh. “And of course, they found that there wasn’t one, because there wasn’t one right.”  

Bowers v. Hardwick was eventually overruled in 2003 in a decision that cited, among other issues, the right to privacy.

The analogy would be Dobbs should not be about abortion, according to Benesh.  

In 2018, Mississippi passed the Gestational Age Act which bans abortions after 15 weeks except in a medical emergency or a severe fetal abnormality.  

Jackson Women’s Health Organization, a clinic and abortion facility in Mississippi challenged the act.  

In the pending case, Mississippi is asking the Supreme Court to overturn Roe v. Wade.  

Thomas Dobbs argued that the Constitution does not provide a right to abortion in the Dobbs v. Jackson’s Women’s Health Organization. He argued that “Roe did not claim that the right was deeply rooted” in the Constitution.  

“As soon as you focus on the substantive right and then look for the historical treatment of that right, we know they’re not going to find the history because in history, we didn’t protect people from these,” said Benesh. “You know, we didn’t protect these kinds of rights. I mean, women didn’t have a lot of rights in the 1800s, right. And of course, they didn’t have a right to an abortion.”  

What’s Next?

Midterm elections are coming up in November and Benesh thinks the overturning of Roe v. Wade will have an impact on it.  

“It depends on what the court ends up doing as a final decision,” said Benesh. “This is just a draft right now, but I would expect especially given what we’ve seen in terms of protests and activity already that this would be a potential way to energize democrats when it comes to the midterms.” 

Biden said in a statement, a woman’s right to choose is fundamental.  

“If the Court does overturn Roe, it will fall on our nation’s elected officials at all levels of government to protect a woman’s right to choose,” said Biden. 

Benesh said we need to remember that it matters who sits on the Supreme Court.  

“A lot of the decision about who gets to sit on the court hinges on elections.” 

Benesh said the fact that Alito and his opinion said Roe was wrongly decided the day it was decided, which was in 1973.  

“So why is it not?” asked Benesh. “Why has it not been the case that the court has decided to overturn it before 2022? And the answer to that question is the justices on the court right now, we now have five justices.”  

She asked if we believe the leaks then who would be willing to overturn Roe where we did not have five justices? 

“The reason we have those five is because there has been this concerted effort over time to place judges in judgeships that have particular positions on abortion and that has now come to fruition. And that’s all about elections,” said Benesh.