Late Monday evening, POLITICO obtained an initial draft majority decision in the case of Dobbs v. Jackson Women’s Health Organization that would repeal Roe v. Wade, the U.S. Supreme Court case that guaranteed the constitutional right to an abortion. If the draft stands, abortion would become virtually illegal in Wisconsin.
Written by Justice Samuel Alito, the draft majority decision would reverse Supreme Court decisions from the 1973 landmark Roe. v Wade case as well as the 1992 Planned Parenthood v. Casey case, both of which ensured abortion rights for women.
“Roe was egregiously wrong from the start,” Alito wrote in the draft decision. “We hold that Roe and Casey must be overruled. It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”
Alito concluded the draft, writing that “the Constitution does not prohibit the citizens of each State from regulating or prohibiting abortion. Roe and Casey arrogated that authority. We now overrule those decisions and return that authority to the people and their elected representatives.”
The disclosure of the document came as a surprise to many, as the Supreme Court is traditionally known for closed-door procedures and secrecy regarding upcoming case decisions.
“Not only is the result it portends — the overruling of Roe and Casey — a shockwave to our constitutional politics, but we have never seen a leak remotely like this from inside the Court, where we're not just hearing what the result is going to be, but we're seeing the draft majority opinion in advance,” Steve Vladeck, a Supreme Court analyst and professor at the University of Texas School of Law, told CNN.
Supreme Court spokesperson Patricia McCabe said the Court had no official comment about the draft Monday night.
President Joe Biden released a statement Tuesday morning that reiterated his administration's support for Roe and called on Democratic lawmakers to pass a bill protecting abortion rights.
“If the Court does overturn Roe, it will fall on our nation's elected officials at all levels of government to protect a woman's right to choose,” Biden said. “At the federal level, we will need more pro-choice Senators and a pro-choice majority in the House to adopt legislation that codifies Roe, which I will work to pass and sign into law.”
The statement further outlined that Biden prepared an administrative response to protect abortion rights if Roe is overturned and “will be ready when any ruling is issued.”
What’s next for Wisconsin
Wisconsin reproductive rights activists plan to protest the Roe decision Tuesday night at 7 p.m. on the west steps of the Capitol building. The event is being organized by the Young Democratic Socialists of America’s UW-Madison Chapter and Madison Socialist Alternative.
A Marquette University poll from November 2021 showed that Wisconsinites are largely in favor of abortion, with 61% of voters saying that abortion should be legal in all or almost all cases, and only 34% saying it should be illegal in all or almost all cases.
Wisconsin joins four other states with pre-Roe abortion bans, meaning currently unenforced abortion bans will immediately take effect again if Roe is overturned. Thirteen other states have implemented “trigger laws” since 1973 that would have the same effect.
Wisconsin law prohibits the prosecution of women who obtain abortions. However, anyone other than the individual receiving an abortion, including doctors performing an abortion, could be charged with a felony. The only legal abortion procedures would have to be “performed by a physician, ‘necessary to save the life of the mother,’ and performed in a licensed maternity hospital, unless in an emergency” according to the Wisconsin Institute for Law & Liberty.
Wisconsin Attorney General Josh Kaul previously stated that he will not prosecute abortion cases. Experts say this could lead to a “county to county” enforcement of an abortion ban in Wisconsin, as some prosecutors may choose to enforce the ban and others may not.
Whether prosecuted or not, abortions would become virtually inaccessible in Wisconsin. Planned Parenthood previously announced it would leave Wisconsin if Roe was ever overturned.
Wisconsin Democrats immediately took to Twitter after the Dobbs draft majority opinion was released to reaffirm their support for reproductive rights.
“Our work to defend access to reproductive healthcare has never been more important. Before I became governor, I promised I’d fight to protect access to abortion and reproductive rights. I’ve kept that promise, and I will fight every day as long as I’m governor,” Gov. Tony Evers said in a tweet Monday.
U.S. Rep. Mark Pocan (WI-02) also described his concerns about abortion accessibility.
“Safe abortions will always be accessible to the wealthy. It’s about taking away your right to bodily autonomy,” Pocan tweeted Monday. “There’s no time to waste — the Senate must codify Roe.”
Pocan was one of many Democrats to urge the U.S. Senate to “codify Roe,” or pass legislation that would cement abortion rights in federal law regardless of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
Though Democrats control Congress and could pass such a bill, a Republican filibuster in the Senate would require 60 votes instead of 50, effectively blocking the legislation. A large number of Senate Democrats are in favor of eliminating the filibuster, but continued opposition from Sens. Joe Manchin (D-W.Va.) and Kyrsten Synema (D-Ariz.) leaves them two votes shy of a majority.
Wisconsin Republicans celebrated the Dobbs draft decision, with current frontrunner for the Republican gubernatorial nomination Rebecca Kleefisch tweeting, “It’s about time!”
As long as Roe v. Wade continues to stand, abortions in Wisconsin are still legal. It is also possible that the draft majority decision in the Dobbs case may change as Supreme Court judges adjust their votes and the public reacts to the leak.
Ian Wilder is a senior staff writer and current men’s hockey beat reporter for The Daily Cardinal. He’s a former state politics and features reporter. Follow him on Twitter at @IanWWilder.