How Overturning Roe v. Wade Would Impact Wisconsin Abortion Access

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Protesters at Red Arrow Park in Milwaukee. Photo credit: Callie Donavan

With the surprising draft opinion leak by Politico Monday night that indicated the United States Supreme Court was looking to overturn the Roe v. Wade decision, many Wisconsinites are wondering how this would affect access to abortions.

Protesters in Milwaukee gathered at Red Arrow Park Wednesday afternoon. People shouted, “my body, my choice,” and carried signs throughout the streets.

Protesters walked from the park into the streets and throughout downtown. Law enforcement blocked off roads to give people full access, and cars honked as they drove past with fists in the air. There were children, walking hand-in-hand with adults, teenagers carrying signs high and older people walking amongst people half their age. There was no “type” at this event- no way to determine a pattern of people who felt strongly about this issue. The only commonality that could be found was a desire to make a point.

Protestors began marching from Red Arrow Park through the streets of downtown Milwaukee. Photo credit: Callie Donavan

“I love our community and I feel like everyone comes together here,” said protester Dani Dalessio. “And it’s important to be part of monumental moments like this.”

For Olivia Cowie, she’s not just thinking about people who get abortions, but also those who are still impacted if Roe v. Wade is overturned.

“I’m scared for my younger brother,” said Cowie. “It’s not just women. I can’t imagine what would happen to my brother if he got a girl pregnant and she was forced to carry the baby to term.”

Protestors preparing to march from Red Arrow Park through Downtown Milwaukee. Photo credit: Callie Donavan

If the high court overturns Roe v. Wade, almost all abortions in Wisconsin would become illegal. Wisconsin’s 1849 Criminal Abortion Statue sates that abortions not declared necessary by a doctor are illegal, and anyone who, “…intentionally destroys the life of an unborn child is guilty of a Class H felony.” A map from the New York Times shows nearly half of the state would have at least 5% of legal abortion decline.

Many Wisconsin elected officials commented on the draft opinion- with diverging messages. Governor Tony Evers ran and won his position with a strong reproductive freedom message. He tweeted several times since Monday saying the potential reversal of Roe would threaten, “…the rights of millions across the country.” He also stated that he would fight any legislation that would impact people’s ability to a legal abortion.

Rebecca Kleefisch took to Twitter after Tony Evers wrote a letter to Congress to pass the Women’s Health Protection Act along with 17 other governors. She is running in the Republican primary for governor.

Attorney General Josh Kaul said in an interview that he would not be enforcing an abortion ban while he is in office. The Milwaukee Journal Sentinel explains that his office would then have no part in investigating those who violate the laws that would go into effect if Roe v. Wade is overturned. He took to Twitter to share his feelings on why the ban would be unsafe for women.

Wisconsin Senator Ron Johnson (R) voiced his thoughts as well, saying this was an attempt to intimidate the court on their decision by the left.

Senator Tammy Baldwin (D) shared her thoughts on what should happen if Roe is overturned.

The court validated the leak Tuesday and Chief Justice John Roberts has announced there will be an investigation into what he says is a “singular and egregious breach of that trust,” referencing the court’s integrity.

The Supreme Court House in Washington D.C. Photo Credit: Marielam1, Wikimedia

The article from Politico with the leaked draft, written by Justice Samuel Alito, shows that five of the nine justices were going to vote to overturn: Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett along with Alito. However, a press release from the court states that the decision is not final.

The courts will often revise a draft before it is made official, and justices have switched their votes before officiating. This was the case when Chief Justice John Roberts helped uphold Obamacare in 2012 by switching his vote. A final decision is expected later in June or July.

Chief Justice John Roberts switches vote in 2012 to help uphold Obamacare. Photo credit: Shardayyy Photograpy.

In 1973 the high court ruled that state laws banning abortion were unconstitutional. Jane Roe (real name Norma McCorvey) challenged a law in 1971 in Dallas County, Texas that made abortions illegal if not necessary for doctors to save a woman’s life. She stated it violated her First, Fourth, Fifth, Ninth and Fourteenth Amendments.

Ultimately the court decided that states banning abortions did violate citizens Fourteenth Amendment. And while the constitution does not directly reference the term “abortion,” many argue that it speaks to it in other ways. The Fourteenth Amendment states: “… nor shall any state deprive any person of life, liberty, or property, without due process of law….” Some argue that banning a person’s right to abortions violates a woman’s privacy and the “potentiality of human life,” in accordance with the amendment. This is what the high court used as their reasonings during the landmark Roe v. Wade case.

Norma McCorvey (left) and her lawyer Gloria Allred (right) outside the Supreme Court building in 1989. Photo credit: Lorie Shaull

A Marquette University Law School Poll from January of 2022 found that 72% of people in the United States oppose overturning Roe. The poll also found that of those asked, 87% of Democrats oppose overturning the ruling and 45% of Republicans oppose. 

The draft opinion came as a shock for a lot of Americans. Typically, the Supreme Court rules by precedent. When a decision has been made in one case, the court will then rule on other cases by looking back at the ones that established principles. This is called a “stare decisis.” Chief Justice John Roberts once compared being a justice to an umpire: “Umpires don’t make the rules, they apply them.” Overturning a decision that has been in effect for just under 50 years is out of the ordinary, though not unheard of.

In 2003, John Lawrence and Tyron Garner were convicted of deviate sexual intercourse in Texas. Their case was taken to the high court and the justices decided that laws criminalizing sex between two men were unconstitutional and violated the Due Process Clause. The Lawrence v. Texas case went against a Texas statue and created a new precedent.

The precedent in Wisconsin changed in 1973 when abortion became legal with Roe v. Wade. If it is overturned, the precedent in Wisconsin will go back to what it was in 1849.

Protesters took the streets of downtown Milwaukee. Photo Credit: Callie Donavan

“It would mean devastation,” said a protestor who asked to remain nameless when asked about the potential overturn of Roe. “A lot of people are going to die, okay? People will need to get abortions and will need that health care. They’re trying to take something away from the people, the working class people who need it.”