A protester at a pro-abortion rally in Milwaukee, Wis. on June 24, 2022. (Source: Joe Brusky on Flickr via Creative Commons 2.0)

The U.S. Supreme Court ruling to overturn Roe v. Wade has brought about some real problems in the state of Wisconsin. 

The first is that it denies women basic rights to bodily autonomy and reproductive freedom. Politicians should not be putting themselves between women and their doctors, and women should be able to make their own choices about having a child. Period.

This decision also means the state of Wisconsin may be reverting to an 1849 law that bans abortion in almost all cases, with no exceptions for rape and incest. It’s a law governing women’s health care that predates women gaining the right to vote by more than seven decades. Instituting such a law is fundamentally unacceptable, and refusing to revisit the law in the wake of the Supreme Court decision is going to have a chaotic immediate impact.  

Of course, a refusal to revisit the law is exactly what happened, when the Republican-controlled Wisconsin State Legislature gaveled-in and gaveled-out of the special session that was called by Democratic Gov. Tony Evers in anticipation of the Supreme Court decision. Republican candidates for governor have vowed to preserve this 173-year-old ban. 

It’s obvious to point out how this law would take our state backwards on such an important issue — WUWM notes that the law “predates the discovery of germs, ultrasounds, and our modern understanding of fetal development” — but the myriad of ways this will impact women making complex, personal decisions about their own health care is already playing out across the state.

“This is happening right now. This is affecting women today,” Dr. Madelaine Tully, a family provider in Milwaukee, said to Wisconsin Public Radio in the immediate wake of the decision. “This is affecting women in such a way that we are most likely going to lose some patients.”

While Gov. Tony Evers and Attorney General Josh Kaul are suing to challenge the legitimacy of this 19th century law, as they announced on Tuesday, medical providers in the state have hit pause on the types of care they had been providing up until last Friday, effectively stuck in a holding pattern until the state Supreme Court rules on the case, because the 1849 law says that physicians and pregnant people could be prosecuted

A central part of Kaul’s argument in this suit is that since other laws governing abortion policy in the state have been passed in the time since that 1849 ban was in place that the state instead should default to those laws — laws like one from 1996 signed by Tommy Thompson that requires counseling and a 24-hour waiting period before seeking an abortion, or a number of laws signed by Scott Walker, such as a 20-week abortion ban passed in 2015. 

“The Republican legislature has left us in this position where we have conflicting sets of statutes,” Kaul said at a Tuesday press conference, responding to questions. “Usually, the legal rule is that the statute that was passed more recently is the one that controls. So, our argument is that that has, by implication, invalidated this old ban. But ultimately, a court will decide … One of the reasons we want to bring this suit is because we need clarity. The legislature has really abandoned the people of Wisconsin at a time when we need them to step up. We have unclear laws.”

Among those also speaking at that same press conference was Kristin Lyerly, an OB/GYN from Green Bay who also ran for State Assembly as a Democrat in 2020. In her remarks, she detailed the problems that could arise through the 1849 criminal abortion ban. The lone exception for that ban is when the mother’s life is threatened, and that requires three physicians to sign off in order for that exception to be valid, she said.

Lyerly raised the key question: “How sick is sick enough?”

This question gets at the heart of why this antiquated ban should not be law of the land and why these types of decisions should be left to women and their doctors. 

The relationship between physician and patient is based on trust, Lyerly added, and “that trust is destroyed when politicians interfere with our sacred patient-physician relationship. Politicians who can’t explain what makes an ectopic pregnancy dangerous, or why a diagnosis of anencephaly is devastating. Management of conditions like these and so many others is complicated and it’s steeped in deeply personal decisions that can only be made by pregnant people. There is and never will be room for politics or politicians in my exam room.”

 

Regardless of whichever way the court rules in Wisconsin, these outcomes of chaos and confusion could have been avoided. If the state government wasn’t so deeply broken — by Republicans who did so much of the breaking, particularly over the last 12 years — then leaders could possibly chart a new path forward, one that could reflect the views of the more than 60% of Wisconsin voters who believe abortion should be legal in some or all cases. 

Instead, the state will be left combating some of the most glaring problems of its legislative body, which has outsized importance in the state’s policy-making.

Because of how the state legislature is structured in Wisconsin, Assembly representatives and state senators are essentially done with any legislating early in each election year. The two-year session tends to conclude by the time the weather starts to warm in Wisconsin in even-numbered years, and politicians pretty much get to go home to campaign for nine months. In 2020, this had disastrous consequences, as during the simultaneous pandemic-recession-historic protest movement that occurred that year, Wisconsin’s Republican-controlled legislature earned the unenviable designation of being the least active full-time legislature in the nation. Basically, they take a nine-month vacation every two years. It’s a bad system. 

The system is bad, but the policies might be even worse. Wisconsin Republicans have continued to refuse to expand Medicaid, denying the state billions in federal funds available through the Affordable Care Act, and are now one of just twelve states — and the only one in the Midwest — that has refused these funds. In Wisconsin, Medicaid covers more than 35% of all births. Wisconsin Republicans also have blocked or denied any efforts to offer paid family leave to new parents, as recently as last session, when the Wisconsin Family Medical Leave Insurance Act was introduced by Democrats, but was denied a public hearing by GOP leadership. Wisconsin is one of only eight states where, if the 1849 law stands, would have no abortion access, no paid family leave, and no Medicaid expansion.  

Wisconsin also has the highest infant mortality rate for African Americans of any state in the nation, and Black mothers are five times more likely to die in childbirth than white mothers. Democrats introduced legislation to address these disparities in the last session, but Republicans stalled the bill. Republican policies in this state have been especially cruel to mothers and newborn babies. Wisconsin is a purple state, but Republicans here govern like it’s redder than some of the most deep red states in the nation. The result is that Republican policies are deeply anti-family.

So, whether it’s the gavel-in, gavel-out that we see in response to special sessions called by the governor, or advancing policies that are far to the right of the majority of the electorate in this 50-50 purple state, or the Republican legislative leaderships complete refusal to meet basic responsibilities to respond to a genuine crisis like the pandemic or a massive shift in public policy like what was handed down by the Supreme Court with Dobbs, Wisconsinites are left with confusion, cruelty and chaos because of a Republican-controlled legislature that is unwilling and unable to govern. 

Democrats need to be doing everything in their power to stop this 1849 criminal abortion ban. Luckily, Evers and Kaul and Democratic leadership in Wisconsin has had a strong response to this moment. Kaul said he wouldn’t enforce the criminal ban, and Evers has said he’d grant clemency to doctors charged under the 1849 law. 

At the Democratic Party of Wisconsin’s annual convention, held over the weekend, Evers said the Supreme Court decision made women to be “second class citizens.” 

“That’s bullshit,” he said. He’s right about that.

Women should not be made to be second class citizens in the state of Wisconsin. This cruel, outdated 1849 ban should not go into place. Even if you are the most ardent pro-lifer, this law needs to be revisited so it reflects the realities of modern health care. And furthermore, for the overwhelming majority of Wisconsin voters who believe in a woman’s right to choose, this law should be tossed entirely for denying women their reproductive freedom.

This is a critical moment for our state, and this 1849 ban should not become law in the state of Wisconsin.


Dan Shafer is a journalist from Milwaukee who writes and publishes The Recombobulation Area. He previously worked at Seattle Magazine, Seattle Business Magazine, the Milwaukee Business Journal, Milwaukee Magazine, and BizTimes Milwaukee. He’s also written for The Daily Beast, WisPolitics, and Milwaukee Record. He’s won 13 Milwaukee Press Club Excellence in Journalism Awards. He’s on Twitter at @DanRShafer.