Much of the national media’s coverage of Judge Brett Kavanaugh’s confirmation hearings to become the next member of the U.S. Supreme Court has rightfully focused on what his confirmation would mean for the future of abortion rights in our country. If the Senate confirms Judge Kavanaugh’s nomination, the Court will almost certainly be ruled by a majority of justices who are hostile to reproductive rights and will likely act to roll back abortion rights or even entirely reverse the landmark decision of Roe v. Wade, which currently protects the right to have an abortion.
While the repeal or reversal of Roe would have incredibly negative consequences for women across the country who need to access comprehensive reproductive health care, the ramifications would be particularly dire in Wisconsin. The reason why the stakes are so high in Wisconsin is that we currently have a law on the books that makes it a felony to provide an abortion. This law dates back to 1849 and was never repealed, even though it has been unenforceable since Roe.
Even by the standards of many other existing political barriers to abortion, Wisconsin’s criminal abortion ban law is incredibly harsh. It does not have exceptions for rape, incest, or the health of the mother. In fact, the only way a woman could legally have an abortion under this law would be if she was about to die as a result of her pregnancy. Should Judge Kavanaugh be confirmed and Roe be repealed, there is a very real possibility that Wisconsin’s criminal abortion ban will be enforceable, which means that a physician or anyone else who helps a pregnant woman obtain an abortion could face up to 6 years in prison and a $10,000 fine (the law doesn't criminalize a woman for having an abortion).
Such a legal regime would mean that a woman would have no feasible option to access an abortion from a licensed medical provider in Wisconsin, unless she can prove that she needs to terminate a pregnancy to save her life. This scenario would turn the clock in Wisconsin 45 years back to a time when women were simply not allowed to make their own health care decisions.
An outright repeal of Roe is not the only concerning possibility of a Kavanuagh confirmation. The Court may choose to slowly erode Roe one case at a time without ever explicitly reversing the decision. In this scenario, the Court would reverse a recent Court decision that encouragingly held that state abortion regulations have to benefit patient health more than they burden their access. As a result, the Court would likely refuse to strike down state regulations on abortion, regardless of how extreme of a burden the restriction placed on abortion access or how little evidence there is that the restriction would promote patient health.
Under this approach, meaningful access to abortion will largely be regulated out of existence in states that are hostile to abortion rights. In fact, we’ve already had a glimpse of what this scenario looks like: there are currently six states that have only one abortion provider. Sadly, Wisconsin has been moving down this troubling path for the last eight years, as the state has only four facilities that provide abortions while our elected officials continue to pass an ever more restrictive set of anti-abortion laws.
The good news is that Wisconsinites and our elected officials have the power to stop these threats to reproductive health care. First, we can urge our U.S. Senators, Tammy Baldwin and Ron Johnson, to oppose Kavaunaugh’s nomination. Whether he is confirmed will likely come down to a single vote. Second, we can demand that our state legislature and Governor start using their powers to stand between a hostile Supreme Court and the women of Wisconsin and take concrete actions to protect access to abortion and reproductive healthcare by repealing our archaic 1849 criminal law and passing new laws that protect our health and rights.
For more information on what’s at stake with abortion access in Wisconsin, visit: http://www.supportwomenshealth.org/scotus.html.
Mike Murray, Policy Director