Roe decision means an immediate halt to abortion in Wisconsin, setting the stage for the state's 1849 ban to take effect
MADISON – Wisconsin doctors will immediately stop providing abortions following a ruling Friday by a divided U.S. Supreme Court that struck down the court's landmark Roe v. Wade ruling that made abortion legal for the last 50 years.
The Supreme Court's decision to overturn the 1973 ruling that legalized abortion in the U.S. could put back into effect a state law passed in 1849 that bans Wisconsin doctors from performing abortions except when saving the life of the mother.
Attorneys for supporters and opponents of abortion access have long said overturning Roe would put back into effect the state ban, but there is sure to be a legal challenge.
"I don't know if (the state abortion ban) is enforceable or not, but there isn't going to be anyone who performs abortion in Wisconsin for the time being because they don't want to take the risk," said Lester Pines, founder and senior counsel of Pines Bach law firm who is representing Planned Parenthood in a lawsuit against the state over its abortion laws.
"The practical effect of this is, for the time being, women in Wisconsin who are seeking abortions will go to Illinois or Minnesota."
Whether the law is enforceable is a question that likely won't be answered definitively until a judge opines on the matter, according to the nonpartisan Wisconsin Legislative Council.
Rick Esenberg, president and chief counsel of the conservative Wisconsin Institute for Law & Liberty, said he believes the state's abortion ban is in effect, "but this is America so there will be litigation."
Some legal experts believe subsequent abortion statutes repealed the original 1849 law, but Esenberg said he didn't believe the argument would be successful in court.
Under the state law, doctors could be charged with felonies for performing abortions and face up to six years in prison and $10,000 in fines.
Following the ruling, and in light of Wisconsin's abortion ban in state statute, officials with Planned Parenthood of Wisconsin and two major health systems announced Friday they would be immediately halting all abortion procedures.
"While reverting to a 173-year-old state law on abortion will create some legal uncertainties, we recognize that this court decision has effectively banned abortions in Wisconsin except to save the life of the mother, and UW Health will continue to comply with the laws related to reproductive health care,” a spokesperson for the system said in a statement.
Kathy King, medical director of Planned Parenthood of Wisconsin, said 70 patients were scheduled to undergo abortion procedures Friday and Saturday but just four procedures took place Friday before the ruling pushed officials to turn the other patients away.
"We will continue to provide all contraceptive methods, and we are considering also expanding services, possibly beginning vasectomy services," King said in a call with reporters.
Democratic Attorney General Josh Kaul said in a statement that state Department of Justice officials are reviewing the Supreme Court decision "and will be providing further information about how we intend to move forward next week."
Kaul and Dane County District Attorney Ismael Ozanne said Friday they would not enforce the state's abortion ban, but it's unclear how other county officials will handle enforcement of the law.
Friday's decision was released weeks after it was leaked to a Washington D.C.-news outlet, an explosive development in Wisconsin's already tense midterm campaign season with Republican candidates for governor celebrating what the leak suggested would mean for the state.
Democratic incumbent Gov. Tony Evers called the decision "unfathomably grim" and pledged to challenge abortion restrictions in Wisconsin.
"I am heartbroken — for the millions of Wisconsinites and Americans the U.S. Supreme Court has abandoned and for our country and our democratic institutions," Evers said in a statement. "We will fight this decision in every way we can with every power we have."
Evers has called for keeping abortion accessible and told WISN he is considering taking executive action to preserve access. Meanwhile, Republicans seeking to replace him have long called for Roe v. Wade to be overturned and do not support adding exceptions to the state law banning abortions.
"Life must always be protected," Republican candidate for governor Tim Michels said in a statement Friday.
Former Lt. Gov. Rebecca Kleefisch, who is running against Michels in the GOP primary for governor, signaled in a tweet that if elected, she would not sign legislation that makes abortion more accessible than the 1849 ban in state law.
"As a state we must hold firm for the voiceless and protect their right to life — and that means enforcing the laws we have on the books," she said. "I remain committed to my 100% pro-life stance."
Assembly Speaker Robin Vos told the Milwaukee Journal Sentinel in May he wants to pass legislation that expands the exceptions to the state's abortion ban to include situations involving rape and incest but did not know whether his Republican colleagues who control the state Legislature would support it.
Associate Supreme Court Justice Clarence Thomas said in a concurring opinion to Friday's ruling that the court should "reconsider" other rights established by the Supreme Court, including access to contraception and gay marriage.
Thomas' opinion underscored an argument abortion rights advocates have made in their warnings against overturning Roe v. Wade, that a ruling establishing the U.S. Constitution does not provide a right to abortions could also jeopardize other rights the court established under the 14th Amendment.
Vos said he is not open to outlawing contraception like condoms or birth control but could support a bill that outlaws emergency contraception, known as "morning after pills."
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Democratic officials and U.S. Senate hopefuls have urged Congress to take action to preserve abortion rights, but neither federal nor state lawmakers have moved to keep abortion accessible.
Friday's ruling could be unpopular in Wisconsin, and campaigns for the fall's midterm elections could transform into debates over abortion rights.
In a survey conducted by the Marquette University Law School this month, 58% of Wisconsin voters said abortion should be legal in all or most cases and 35% said it should be illegal in all or most cases.
On Wednesday, Evers called lawmakers into session to take up a repeal of Wisconsin's abortion ban, but Republicans who control the state Legislature rejected the call and did not take action.
Those who have worked to outlaw and restrict abortions for years were joyous Friday and urged doctors and prosecutors to abide by the abortion ban in state statute.
"This decision is a decision we've been waiting for and working for for decades,” said Gracie Skogman, legislative director for Wisconsin Right to Life, which has advocated for restricting abortion and funding alternatives to it, including adoption.
“There are truly no words to describe the joy we are feeling.”
Julaine Appling, executive director of the Wisconsin Family Council, said she is grateful for the courage of the U.S. Supreme Court justices.
“We’re elated that the poorly decided 1973 Roe v. Wade opinion is finally overturned. It took enormous courage on the part (of) the justices who ended up voting in favor,” she said.
Both groups said they expect and will call on the state DOJ to uphold and enforce the state’s 1849 law.
But Wisconsin Medical Society President Wendy Molaska said in a statement that the high court ruling "raises concerns that could result in significant interference with the physician-patient relationship — the sanctity of which is the bedrock of our health care system."
"Defaulting to a law first created in 1849 is not the best path forward," Molaska said. "Inevitable confusion over the continued validity of that 19th century law makes proactive legislative action prudent."
Molaska said the group, which represents doctors in Wisconsin and lobbies on health care-related legislation, would support a bill that preserves "the right of a physician to perform and give advice on this medical procedure — or refuse to do so according to the physician’s training, experience and conscience."
A group of Wisconsin doctors said in May, following the leak of the opinion, that they planned to open a clinic that provided abortions just over the state border with Illinois, one of just two states that border Wisconsin that abortion is expected to remain legal.
Katelyn Ferral of the Milwaukee Journal Sentinel contributed to this report.
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This article originally appeared on Milwaukee Journal Sentinel: Overturning Roe sets stage for Wisconsin's 1849 ban to take effect
