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Tuesday, August 16, 2022
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Several hundred protestors gathered at the Wisconsin Capitol Saturday to protest against the potential overturning of Roe v. Wade by the Supreme Court.

Abortion virtually illegal in Wisconsin after U.S. Supreme Court overturns Roe v. Wade

“The Constitution does not confer a right to abortion; Roe and Casey are overruled,” the Supreme Court ruled in a 6-3 majority opinion on Friday.

The U.S. Supreme Court officially overturned its rulings in Roe v. Wade and Planned Parenthood v. Casey on Friday, making abortion virtually illegal in Wisconsin.

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” the Supreme Court ruled in a 6-3 majority decision on Dobbs v. Jackson, the case challenging a Mississippi abortion law that violated past abortion rights precedent. 

Concerns over abortion law first manifested in early May after a draft Supreme Court decision for Dobbs was leaked, leading to widespread protests from abortion rights activists. Friday’s official majority opinion closely paralleled the leaked draft.

With no federal law affirming abortion rights, Wisconsin reverts to an 1849 law that bans abortion in all cases except for those medically necessary to preserve the mother’s life. 

No exceptions are made for rape and incest, and the ban is effective immediately.

The ban was previously unenforceable due to Roe v. Wade, the landmark 1973 court case that ruled abortion before a fetus was viable outside the womb at 23 weeks was a constitutional right. Planned Parenthood v. Casey reinforced abortion rights in 1992 by outlawing states from imposing an undue burden on abortion access.

Now, any Wisconsin medical provider who performs an abortion can be charged with a class H felony punishable by a fine up to $10,000, up to six years in prison or both.

Attorney General Josh Kaul said last month that the state Department of Justice will not enforce the 1849 abortion ban. However, local officials may still choose to do so. Kaul warned this may lead to “several different legal disputes” between local and state officials. 

Gov. Tony Evers called a special session of the state legislature on Wednesday as a last-ditch effort to amend what he called an “archaic” abortion ban. As calls for abortion rights echoed throughout the Capitol, the Legislature gaveled in and out of the session in mere seconds. Republicans took no action, as they did during every other special session Evers has called.

“Time and time again, the people of Wisconsin have asked Republican legislators to do what they are elected to do — to take action on pressing issues facing our state, to do the right thing and to help the people we are elected to serve,” Evers said on Wednesday. “Today, they once again failed to muster the courage to perform that simple duty.”

Wisconsin has four abortion clinics, including three Planned Parenthood clinics in Madison, Milwaukee and Sheboygan as well as one additional private clinic in Milwaukee. According to the Associated Press, Planned Parenthood immediately halted all scheduled abortions in Wisconsin after the Dobbs decision on Friday, one day before it originally planned to end abortion care in the state.

A protest against the Supreme Court’s Dobbs decision is planned for 5 p.m. at the Wisconsin State Capitol.

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Supreme Court at odds with public opinion

According to a Marquette Law School poll from May, 67% of Wisconsinites believe abortion should be legal in all or most cases. That number parallels a June poll from Pew Research Center that found 61% of Americans as a whole believe abortion should be legal in all or most cases.

Additionally, a concurring opinion from Supreme Court Justice Clarence Thomas Friday that called into question rights to same-sex intimacy, same-sex marriage and contraceptive access had liberal justices worried in their dissenting opinion on Dobbs

“[The majority opinion] eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station,” Supreme Court Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor wrote. “It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.”

All three rights – same-sex intimacy, same-sex marriage and contraceptive access – are highly popular among Americans. Additionally, the United Nations affirms contraceptive access is a “universal human right” and advocates for “equal rights and fair treatment” for LGBTQ+ people worldwide.

Furthermore, the Republican majority in the Wisconsin Legislature – which took no action to amend the state’s 1849 abortion ban – won 62% of Assembly seats and 64% of Senate seats in the 2020 elections despite winning 53% of the statewide popular vote. The state’s 2018 elections were even more lopsided, with Republicans winning just 45% of the popular vote but 64% of the Assembly seats. 

The Republicans’ majority in the Assembly and Senate was fortified earlier this year when the U.S. Supreme Court struck down Evers’ legislative redistricting proposal for the Legislature’s maps, which heavily favored GOP candidates. The case was sent back to the State Supreme Court, which went back on an earlier decision and sided with the Legislature. 

Editor's Note: A previous version of this story mistakenly identified Supreme Court Justice Samuel Alito as the author of the concurring opinion in Dobbs. The story has since been corrected to identify Justice Clarence Thomas as the author of the concurring opinion. 

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