Attorney and founding member of Motherhood for Good
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If you’re reading this, you probably already know that the upcoming Wisconsin Supreme Court election is our chance to protect abortion rights. But what exactly does that mean? How could a single seat on the highest court of our state have such a drastic impact on reproductive healthcare? Let’s break it down.
With Justice Patience Roggensack’s impending retirement, the Supreme Court’s ideological balance is uncertain. Wisconsin’s seven justices are elected on a nonpartisan basis, but that’s really just in name only, considering that the political leanings and ideologies of the justices—and candidates—are widely known. Currently, the Court sits at a 4-3 conservative majority, which means that whoever wins the election for Justice Roggensack’s seat will either confirm the status quo or shift the Court’s balance to a 4-3 progressive majority. So what does that have to do with abortion?
Wisconsin has had a criminal abortion ban in its laws since 1849, but that ban could not be enforced following the United States Supreme Court’s 1973 decision to protect the right to abortion in Roe v. Wade. Following Roe, the 1849 ban has been lurking in Wisconsin’s statutes, ready to be triggered back into effect should Roe ever fall. While some thought such a day could never come, we all know that the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization effectively ended the federal protections for abortion that had otherwise insulated Wisconsinites from the 1849 ban. Unsurprisingly, our nearly two-thirds Republican majority state legislature rebuffed efforts to repeal the 1849 ban after Dobbs. Instead, Attorney General Josh Kaul filed a lawsuit challenging the 1849 ban in state courts. That legal challenge will almost certainly reach our Supreme Court, at which point the decision of whether Wisconsinites will have access to safe and legal abortion will rest in the hands of seven justices.
The 1849 ban, simply put, makes it a felony for a doctor to perform an abortion unless the life of the pregnant person was determined to be at risk. Not the health of the pregnant person, but the life of the pregnant person. Under the ban, one has to be at risk of dying before being allowed to receive abortion care. According to a Marquette Law School poll, nearly 60% of Wisconsinites support safe and legal access to abortion care.