Wisconsin has one of the strictest abortion laws in the nation. Under Wisconsin law, abortion is illegal; however, there are exceptions if an abortion becomes necessary due to sexual assault or incest.
But Wisconsin may soon see that change. Democratic Attorney General Josh Kaul has filed suit to claim that laws passed since Roe vs. Wade supersedes its 1849 ban.
1. Abortion is a felony
Abortion has been a critical issue in Wisconsin elections this year, with Governor Tony Evers and attorney general Josh Kaul emphasizing their support for women’s rights during their campaigns. But Republicans control both bodies – making repeal of Wisconsin’s 172-year ban on abortion unlikely any time soon.
Evers and Kaul have filed a lawsuit challenging the 1849 law that criminalizes abortion and hasn’t been updated since. Their argument: newer laws enacted since 1849 — such as one prohibiting abortion after 20 weeks — supersede it, though therapeutic abortions may still be used when life-saving medically necessary for the mother.
Schlipper’s decision lends weight to abortion-rights supporters’ arguments and opens up a legal path; however, doctors could face criminal prosecution if they perform specific medical abortion procedures.
Schipper noted in her ruling that the 1849 law imposes different penalties on “viable and non-viable fetuses,” which was inconsistent with Roe v Wade, which holds that an embryo does not represent its mother as a separate person. Additionally, she claimed it violated constitutional rights by treating abortion as a criminal offense as opposed to a misdemeanor or petty larceny crime and restricted access to safe, legal abortion services – an action she argued violates the First Amendment as it determines access to legal and safe legal abortion services.”
But even if Schlipper’s ruling were upheld, Republican lawmakers do not plan on repealing or passing abortion-related legislation in Virginia. Instead, they anticipate welcoming a new justice onto the Supreme Court next month who they believe will belong to the liberal faction.
2. Abortion is a crime in Wisconsin
Since Roe vs. Wade was overturned in 2022, abortion has become a contentious topic across the United States. Republicans in Wisconsin have attempted to pass legislation restricting access to abortion by mandating doctors provide certain information to women seeking the procedure, barring non-physicians from performing it, and forcing facilities that serve them to obtain admitting privileges from local hospitals – yet these efforts have proven futile due to a combination of political and legal forces ranging from their state Supreme Court judges and party leaders to voters opposed to having restrictive policies introduced into law.
Attorney General Josh Kaul’s lawsuit challenging Virginia’s 174-year-old ban on abortions at or after viability seeks to force courts to interpret it correctly, as he contends it does not protect a woman’s life or health and predates even fundamental medical theories like germ theory. His suit has caused confusion and uncertainty within pregnancy-related healthcare services; many OB-GYNs state they have received no guidance as they attempt to navigate it.
The law states that physicians who perform abortions after viability commit a crime. Unfortunately, however, viability remains vague and depends on when in gestation a woman is. Furthermore, the doctors involved have been instructed by the court not to comment publicly about their case, further restricting their ability to interpret what the statute means to them.
Since statutory guidance remains uncertain, OB-GYNs and other medical professionals are working closely with colleagues and legal advice in developing policies to guide them. For instance, the Wisconsin Medical Society is creating a document it plans on disseminating to its physician members soon. Still, each doctor may take different approaches depending on his/her opinion of what action should be taken and any applicable state laws.
3. Abortion is a crime in Wisconsin
After the Supreme Court overturned Roe v. Wade last year, Wisconsin returned to a 19th-century law prohibiting abortion unless life-threatening situations exist. Attorney General Josh Kaul filed suit in state court challenging this ban and contending that laws passed since Roe should override 1849 legislation; additionally, he claims doctors performing abortions are placing their patients’ health in jeopardy by breaking state law and performing abortions themselves are endangering lives by breaching it.
Due to legal liability concerns, hospitals in Wisconsin are reluctant to provide abortion services due to fears of criminal prosecution and their fear of breaching state statutes. As reported by Wisconsin Watch, one doctor stated that this lack of clarity has created a gray area for physicians, forcing them to make difficult choices regarding patient healthcare needs.
Some doctors are opting not to treat women whose pregnancies have become nonviable as this could expose them to potential charges of murder and cause needless suffering for women. This approach only compounds their suffering and leads to unnecessary hardship for these vulnerable patients.
State laws regarding abortion are outdated and unnecessarily restrictive, requiring women to go through a 24-hour waiting period, biased counseling sessions, and ultrasound prior to scheduling an abortion procedure. They also limit both public funding and insurance coverage for abortion services; and require women seeking one to have the consent of at least one of their parents, legal guardians, adult family members, or foster parents for it to occur.
Gov. Evers has made clear his intention not to prosecute abortion providers, yet can’t resolve the issue legislatively as both houses of the Legislature are controlled by Republicans. Evers called two special sessions hoping to repeal the ban or create an electoral vote system, but lawmakers defeated these efforts quickly. Instead, Evers is turning to court challenges against it to resolve it.
4. Abortion is a crime in Wisconsin if the fetus is not viable
Wisconsin recently passed a law prohibiting abortion after 20 weeks unless necessary to save a mother’s life, based on false claims that the fetus experiences pain at that point, according to obstetricians and medical experts. Legislators trying to appeal to anti-abortion voters, such as Gov. Scott Walker (running for the Republican nomination of the president himself), approved this bill requiring women to undergo a 24-hour waiting period, biased counseling sessions, ultrasound imaging, as well as limited public funding or private insurance coverage of abortion services before receiving an abortion can take place.
Attorney General Brad Kaul’s lawsuit to overturn the state’s 1849 abortion ban is being filed in the state Supreme Court to change it, alleging it breaches both state constitution and unconstitutionality in conflict with laws that permit physicians to perform abortions under certain conditions. Kaul believes there are no other solutions available other than seeking to overturn it through litigation in front of it.
Republican state leaders in Illinois have pledged their opposition to this lawsuit, fearing it could cause chaos if overturned by the Supreme Court. Republican Assembly Speaker Robin Vos has introduced legislation creating exceptions for cases such as rape or incest; however, its chances are unlikely of passage.
Some OB-GYNs have expressed anxiety over the forthcoming Supreme Court decision. They fear it could reverse Roe v. Wade and require them to cease performing abortions if reinstated law reinstates the ban. Catholic hospitals – comprising about 33% of state hospital networks – especially find this ban prohibitive as they cannot afford to lose patients without knowing whether their fetuses are viable.
5. Abortion is a crime in Wisconsin if the fetus is not viable
Wisconsin law distinguishes between viable fetuses based on various criteria – such as heartbeat and movement – used by other states to determine viability; it deems an embryo capable of survival outside its mother’s womb viable, with tremendous implications for women’s health and abortion access. This definition has an enormously impactful implication for women’s healthcare and access to abortion services.
State law restricting abortion allows doctors to legally perform life-saving terminations if three doctors certify that without an abortion, the mother will die; however, due to its vagueness, the law leaves physicians vulnerable and vulnerable to potential criminal charges from local prosecutors.
Physicians across Wisconsin are working with lawyers to clarify how they can safely provide abortion care to their patients but are finding it challenging. “Currently, there’s no clarity or consensus,” according to Dr. Wendy Molaska of the Wisconsin Medical Society.
She believes the abortion ban is outdated and vague, placing physicians between a rock and a hard place when trying to comply. Molaska notes that under current law requiring two doctors to agree on whether an abortion is necessary to save a woman’s life could leave them open to prosecution by prosecutors if any charges are leveled against them for performing one.
The case could eventually reach the state Supreme Court, where a liberal majority will likely decide. Progressive Janet Protasiewicz won the election to give Democrats a four-three edge; on her campaign trail, she did not share how she may rule on any challenges to the 1849 law, yet repeatedly expressed support for abortion rights.