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Thursday, May 26th, 2022
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MADISON — After nearly 50 years, the constitutionally suspect U.S. Supreme Court decision federally protecting abortion may soon be history.

Politico’s publication of a leaked initial draft of a majority opinion striking down Roe v. Wade has created a political firestorm.

The draft suggests the conservative-led Supreme Court will uphold a Mississippi law banning abortions after 15 weeks of pregnancy, as well as overrule abortion rights established in Roe and further affirmed in the court’s 1993 Casey v. Planned Parenthood.

Gov. Tony Evers joined a chorus of pro-abortion politicians in predicting doom and gloom for “reproductive rights in America,” despite the fact that striking down constitutional protections that do not exist in the constitution would not end abortion in America. The states that vehemently protect access to abortions will continue to do so, and can continue to do so under existing laws.

Evers said he will fight every day as long as he is governor to protect access to abortion rights. He and fellow Democrats used the leaked draft as a get-out-the-vote message to their liberal base.

But what would post-Roe v. Wade Wisconsin look like?

Dan Lennington, deputy counsel for the Wisconsin Institute for Law & Liberty, earlier this year took a closer look at the law.

After Roe: Abortion in Wisconsin

Wisconsin’s current law permits abortions under 20 weeks, subject to numerous regulations. But if Roe is overturned, these regulations will become irrelevant because Wisconsin still has a criminal statute prohibiting nearly all abortions. After Roe, this statute will spring back to life and allow prosecutors to charge and juries to convict abortionists.

From the outset, it is important to note that Wisconsin law prohibits prosecuting women who obtain abortions. Section 940.13 provides that “no fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion.”

Wisconsin’s abortion ban provides as follows:

  • Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
  • Any person, other than the mother, who intentionally destroys the life of an unborn quick child is guilty of a Class E felony.

As it has for over a century, this law makes a distinction between the abortion of an “unborn child” (Class H felony) and an “unborn quick child” (Class E felony, a higher penalty). Under Wisconsin precedent, an unborn child is recognized as “quick” at 16-18 weeks’ gestation, when the child begins to move.

This law provides an exception for abortions meeting all three of the following qualifications: (1) performed by a physician, (2) necessary to “save the life of the mother,” and (3) performed in a licensed maternity hospital, unless in an emergency.

If applied to current abortion practices in Wisconsin, this law would criminalize nearly all abortions. Abortions to “save the life of the mother” are exceedingly rare, if ever necessary.

The only thing preventing enforcement of this statute is Roe v. Wade—a Wisconsin federal court has made this fact abundantly clear. In Larkin v. McCann, the Eastern District of Wisconsin vacated a previous injunction against Wis. Sat. § 940.04, explaining that Roe made the need for any injunction moot: “We recognize that there will be no direct official deterrent to prosecution of the plaintiff by the defendants as a result of our action today.” The court explained that the “sweeping scope of Roe and Doe and their practical effect on the Wisconsin statute is clear”: there can be no prosecution so long as those cases remain good law.

Even as late as 1994, the Wisconsin Supreme Court, in State v. Black, held that Wis. Stat. § 940.04 was a still valid statute, had not been repealed by implication or otherwise, and was enforceable to the extent it was not in conflict with the constitutional right established in Roe.

In sum, not only does Wisconsin have an abortion ban, but the ban is not enjoined by any formal court order. Wisconsin’s abortion ban could be back in force by June 2022, assuming the case before the Supreme Court removes the constitutional right to abortion, which is the only hurdle to enforcement of Wisconsin’s law banning it.

Read more at the Wisconsin Institute for Law & Liberty.

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