UW politics professor breaks down Wisconsin’s complex abortion laws

Wisconsin has a history of restrictive abortion laws dating back to 1849. 

In 1849, lawmakers passed a law that was interpreted as a ban on the procedure. In  1985, lawmakers criminalized abortion providers, banning “whoever intentionally performs an abortion after the fetus or unborn child reaches viability” as determined by a medical professional. 

Even after the U.S. Supreme Court’s landmark Roe v. Wade ruling in 1973 affirmed that women had a constitutional right to abortion and made state bans unenforceable, state lawmakers sought to place restrictions on the procedure.

And now that the court has overturned its decision with its June 2022 ruling in Dobbs v. Jackson Women’s Health Organization, things have only gotten more confusing.

The 1849 law went back into effect after the Dobbs decision, but a Dane County judge ruled in December that the law doesn’t apply to abortion. A lawsuit filed by Gov. Tony Evers and Attorney General Josh Kaul challenging the 1849 law is expected to end up in front of the Wisconsin Supreme Court, which has a 4-3 liberal majority. 

The Wisconsin Independent spoke with Howard Schweber, a professor emeritus of political science at the University of Wisconsin Law School and an expert in constitutional law and judicial politics, about the state of abortion law in Wisconsin.

This interview has been edited for length and clarity.

The Wisconsin Independent: Can you explain Wisconsin’s 1849 abortion statute? What does it mean, and what do anti-abortion lawmakers such as Sheboygan County District Attorney Joel Urmanksi argue it means?

Howard Schweber: What the 1849 law says is that if someone destroys a fetus, like by punching a pregnant woman in her stomach or causing a car accident that causes a woman to lose a baby, that’s a crime.

After Dobbs, folks who are pro-life people, people who wanted to see abortion banned, went back to the 1849 law and said, Wait a minute, nothing in that law as written specifically excludes medical abortions from the act of destroying the fetus. Why can’t we argue that the law bans those abortions, bans all abortions because any abortion is a destruction of a fetus? 

WI Independent: So both sides are trying to get this law in front of the liberal majority state Supreme Court. Why now? What’s the relevance of pushing that forward?

Schweber: There are a couple of answers to that question, and it may depend on how cynical you happen to be. On the one hand, it’s clearly the case that people need to know what the law is.

If there is a woman who is pregnant, who wants to seek an abortion, at the moment, the highest court in Wisconsin hasn’t answered the question of whether that’s legal or not. A lower court has done so, but a different lower court could reach a different conclusion, a prosecuting attorney in a district other than that one could bring an action. So the uncertainty is really bad at a human level for everyone involved. The woman, the doctor, even anti-abortion activists, for that matter, gain no benefit from uncertainty here. It is true that the uncertainty undoubtedly discourages abortions. If you’re a pro-life person … that’s not really your goal. You want the law to ban this practice.

Of course, the question will be, given the change in personnel in the court, isn’t it likely that the ruling will favor abortion rights? And the answer is yes, as a matter of political calculation that seems likely.

But now we get to the political rather than the legal consideration: In the next election cycle, certainly, Democrats will want to run on abortion rights as an issue, and Republicans or pro-life voters in Wisconsin will want to run on the abortion issue as well. If I were a political strategist and on the pro-life side, I might wonder whether the people who favor abortion rights might overreach. And that’s happened in Congress. When Democrats in Congress proposed a bill that frankly went far beyond Roe in its wording, conservatives were able to seize on that and say, See, this is not the reasonable compromise they pretend they want. This is a radical agenda.

From a political perspective, it may seem to both sides that they benefit from a clear ruling, regardless of how it comes out, so that they have something to run on. A ruling from the Wisconsin state Supreme Court that strongly favors abortion rights may diminish the salience of the issue for pro-choice voters. 

WI Independent: What do you think the outcome of the state Supreme Court ruling will likely be, and how would that impact the 2024 elections?

Schweber: My expectation is that in fact, the court will not do anything particularly radical, partly because they have no need to. There’s both a legal principle and a political principle that says courts shouldn’t go further than they have to deal with the question in front of them. In this case, the simple and I think extremely sensible result would be to say, No, the 1849 law is not about abortions, but the 1985 law is, that law is perfectly valid, and therefore it remains in force unless and until the Legislature chooses to change it.

[Note: The law passed in 1985 banned abortion “after the fetus or unborn child reaches viability, as determined by the reasonable medical judgment of the woman’s attending physician.” The law offers exceptions to preserve the life of the woman.]

WI Independent: What is likely to change with regard to abortion law moving forward in the state?

Schweber: The thing that’s likely to change, in this as in everything in Wisconsin, is that the gerrymander has been sharply reduced. And everything turns on the gerrymander. The ability of the Republicans to dominate the state Legislature has depended entirely on the 2010 gerrymander. In 2024, we’re going to have elections in a less — much less, not entirely, but much, much less — pro-Republican gerrymandered system. Wisconsin is a genuinely divided state. It’s entirely possible Republicans will maintain majorities in one or both houses of the Legislature, but not supermajorities.