October 4, 2022
Abortion rights are effectively on the ballot this election. In late June, the U.S. Supreme Court ended nearly 50 years of federally protected abortion rights with its ruling in Dobbs v. Jackson Women’s Health Organization.
If Wisconsin elects Tim Michels as governor on Nov. 8, residents could see further changes in state law as Michels and many fellow Republicans seek to keep elective abortion outlawed. If Gov. Tony Evers keeps his seat, the stalemate over abortion rights between the GOP-run Legislature and the Democratic governor likely would continue.
Whoever is elected Wisconsin’s next attorney general will determine whether a challenge to Wisconsin’s 173-year-old near-total ban, which could restore abortion access in the state, will continue. That person will also decide whether to support local prosecutors in charging physicians with felonies for providing abortions deemed to violate that law. Democratic Attorney General Josh Kaul, who is leading the legal challenge, refuses to enforce it. His opponent, Republican Eric Toney, says he would.
The stakes are also high for the U.S. Senate and House races as Congress may be asked to vote on whether to codify a federally guaranteed right to an abortion — or a federal ban on abortion nationwide after 15 weeks.
The U.S. Supreme Court decision effectively stopped elective abortions in Wisconsin and left physicians and lawyers scrambling to determine which circumstances would qualify under the 19th-century life-saving exception. In the aftermath of the ruling, pregnant people have faced delayed care for incomplete miscarriages and complications of medication abortions obtained elsewhere.
Of 210 candidates on the ballot for state legislative offices in Wisconsin, 35 indicated they would support a state constitutional amendment for fetal personhood, according to Pro-Life Wisconsin. The amendment would grant full legal rights to fertilized eggs, embryos and fetuses from the moment of conception. Wisconsin Right to Life, the state’s oldest anti-abortion group, does not support the concept.
Pro-Life Wisconsin’s Legislative Director Matt Sande emphasizes the amendment would leave the details to lawmakers. But critics warn that fetal personhood could not only lead to a wholesale abortion ban, but also outlaw in vitro fertilization, intrauterine devices and emergency contraception known as Plan B.
According to Sande, the fetal personhood amendment would prevent the Wisconsin Supreme Court from finding a right to an abortion in the state constitution, as has been done in Kansas.
Abortion ruling unpopular
In June, just days before the ruling, 58% of registered Wisconsin voters told the Marquette Law School Poll they believed abortion should be legal in all or most cases.
After the decision was issued, a majority of registered Wisconsin voters, 63%, said they oppose it, according to a September Marquette poll. But the public is sharply split: 95% of Democrats and 66% of independents oppose the ruling — while less than one-third, or 29%, of Republicans, oppose it.
The true status of abortion rights in Wisconsin remains unsettled. The state has multiple competing laws passed both before and after the landmark Roe v. Wade decision. Wisconsin’s 19th-century ban only allows abortions deemed necessary to save the pregnant person’s life.
A statute passed after Roe v. Wade permits abortions until fetal viability, meaning the point at which a fetus can survive outside the uterus. Other laws establish waiting periods and restrict which professionals can perform the procedures.
Wisconsin Watch has listed endorsements for groups supporting or opposing abortions for the following races: governor, attorney general, U.S. Senate, U.S. House of Representatives, state Senate and state Assembly. Candidates for governor, attorney general and U.S. Senate also were asked several questions including whether they would support exemptions for rape or incest or would seek to criminalize people for obtaining the procedure.
Lawsuit challenges 1849 law
Kaul has sued in Dane County Circuit Court to clarify Wisconsin’s abortion law. He is asking a judge to find the near-total ban — which he calls “draconian” — unenforceable. Kaul told Wisconsin Watch by email: “I am pro-choice. For the freedom, equality, and health of women in Wisconsin, we must restore access to safe and legal abortion.”
That lawsuit will almost certainly end if Toney, currently Fond Du Lac County’s district attorney, becomes attorney general. Toney, who has the endorsement of Wisconsin Right to Life, tweeted that he will “enforce and defend the laws as passed by the legislature and signed into law.” Toney did not respond to Wisconsin Watch’s questions.
Enforcing the ban is a matter of prosecutorial discretion. All prosecutors choose which cases to charge and which to ignore. It primarily falls on county district attorneys to decide whether to charge physicians who performed abortions with a Class H felony. Convictions bring up to six years of combined prison and extended supervision and a $10,000 fine.
District attorneys are elected to four-year terms under party labels. They are up for election in 2024.
Kaul has pledged not to commit Department of Justice resources to enforcing the near-total ban. But Toney told the Milwaukee Journal Sentinel that if elected, he would provide “guidance and support” to prosecutors who choose to do so.
Wisconsin’s ban does not provide exceptions for rape or incest. But in September, a Marquette poll found “overwhelming support” for legal abortions for survivors of rape or incest among all parties, including 70% of Republicans.
Anti-abortion Michels shifts stand
Michels, the Republican candidate for governor, recently changed his position, better aligning it with that consensus.
“In addition to supporting the state law that provides an exemption for protecting the life of the mother, he has also stated that he would sign a bill with exemptions for rape and incest if such a bill were put on his desk,” campaign spokesperson Anna Kelly said in an email.
About two weeks before that, Michels told attendees of a Dane County GOP event that despite pressure, he would not “soften (his) stance” by supporting an exception for rape or incest. And months before that, he told WISN 12 News that his position was an “exact mirror of the 1849 law,” and that he would not support exceptions for rape or incest. It’s a stance the Journal Sentinel notes he has held since at least 2004, when he said it was “not unreasonable” to ask a rape survivor “to go through the birth.”
Wisconsin Right to Life typically offers “qualified” endorsements to candidates who favor rape or incest exceptions, which they do not support. The organization has not modified its full endorsement of Michels, telling Wisconsin Watch by email: “We recognize that if elected, Mr. Michels (sic) role would be to sign laws not write them.”
In 2020, Michels also donated $250,000 to anti-abortion and anti-LGBTQ groups, the Journal Sentinel reported. One of those groups, Veritas Society, tracks the location of cellphones of people seeking reproductive care to target them with anti-abortion messaging.
Evers: Abortion rights must be protected
Meanwhile, Evers, who is running for a second four-year term against Michels, has attempted to use his power to safeguard abortion rights. He has pledged to pardon doctors prosecuted for providing abortions.
The governor also leads a coalition of 17 Democratic governors calling on Congress to codify federal abortion rights through the Women’s Health Protection Act. He joined Kaul in his lawsuit challenging the 1849 ban, and he previously called a special session for lawmakers to repeal the statute, which the state Senate gaveled in and out of in 15 seconds, according to WPR.
In September, Evers called for another special session to craft a constitutional amendment permitting ballot initiatives — a mechanism currently open to voters in some states but not Wisconsin. Although these could cover any topic, Evers specifically said the proposal could help create a “pathway” to abortion access.
Wisconsin Republicans, including U.S. Sen. Ron Johnson, “summarily rejected it as a political stunt,” reported the Associated Press. On Tuesday, the GOP-run Senate and Assembly quickly gaveled in and out without taking action on the measure.
During his tenure, he has blocked at least nine anti-abortion bills. Upon receiving an endorsement from NARAL Pro-Choice America, Evers said: “My veto pen is the only thing stopping Republican lawmakers from passing extreme legislation banning abortion and blocking access to reproductive healthcare.” If Michels wins, he will almost certainly support anti-abortion bills passed by a Republican-controlled Legislature.
“Politicians shouldn’t be inserting themselves into personal, intimate reproductive healthcare decisions,” Evers said in a statement. “We should trust people to make decisions that work best for them and their family with their healthcare providers.”
Congress could face abortion decision
Wisconsin’s congressional delegation could also consider federal abortion laws.
Lt. Gov. Mandela Barnes, a Democrat running for Senate, has campaigned on codifying a federal right to an abortion. He also favors abolishing the filibuster, which he mentioned after a draft of the Dobbs decision leaked. A bill that is filibustered requires a 60-vote supermajority to pass. Even a threat from a sufficient number of senators to filibuster a bill has been enough to kill it, according to the Brennan Center for Justice.
A Johnson campaign spokesperson directed Wisconsin Watch to a webpage detailing his abortion position. According to the website, Johnson has voted for a 20-week abortion ban. It says he supports exceptions in cases of rape or incest, or if the pregnant person’s life is at risk. But Johnson signed a friend-of-the-court brief in Dobbs that supported Mississippi’s 15-week ban, which does not include exceptions for rape or incest.
After the Dobbs ruling, Johnson tweeted: “For almost 50 years the decision of nine unelected Justices prevented a democratically derived consensus on the profound moral issue of abortion. Now the debate can be returned to states.” In September, he told the Milwaukee Journal Sentinel that voters should decide on abortion rights through a statewide ballot referendum — which, in Wisconsin, only the Legislature can call.
In the U.S. House, seven of Wisconsin’s eight congressional districts have contested elections, and support of abortion rights mostly falls along party lines, with all Democratic candidates either endorsed by the pro-abortion rights group NARAL or making statements favoring abortion rights.
All but two of the Republican candidates have been endorsed by anti-abortion groups. Two Republican candidates also favor fetal personhood.
One of them is Glenn Grothman, who has no opposition in the 6th Congressional District. The other is Republican Derrick Van Orden, who is endorsed by both of Wisconsin’s anti-abortion groups. His opponent in the 3rd Congressional District, Democrat Brad Pfaff, is endorsed by the Planned Parenthood Action Fund.
Van Orden has said he does not support exceptions for rape or incest, telling WSAU Feedback in 2020 that a rape survivor obtaining an abortion is “just compounding the evil.”
The nonprofit Wisconsin Watch (www.WisconsinWatch.org) collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.