The decision about whether and when to become a parent is one of the most important life decisions we make. When people are able to make their own decisions about pregnancy, families thrive, and we build communities where each of us is able to live with dignity and autonomy. But anti-abortion politicians will stop at nothing to push abortion care out of reach or ban it outright.
In 1973, the Supreme Court of the United States (SCOTUS) held in Roe v. Wade that the US Constitution protects the right to have an abortion. Decades later, in Whole Woman’s Health v. Hellerstedt, the Supreme Court added that while states can regulate abortion, those regulations have to benefit patient health more than they burden their access. Since Roe, the Supreme Court has held that the Constitution protects the right to have an abortion, but that right is under serious threat given the changes of the makeup of the Supreme Court.
In June 2020, SCOTUS ruled on June Medical Services v. Russo, a case which challenged a Louisiana law requiring admitting privileges at nearby hospitals, and infringing on Louisianans’ constitutional rights to abortion. This case was nearly identical to Whole Woman’s Health v. Hellerstedt. The facts, the law, and the Constitution have not changed since 2016. The only thing that has changed is the makeup of the court.
June v. Russo was the first major abortion case that the Court heard since President Trump appointed Justices Neil Gorsuch and Justice Brett Kavanaugh. Thankfully, their votes were not enough to overrule precedent created by Whole Women’s Health v. Hellerstedt. In a 5-4 decision, Chief Justice Roberts noted that his decision was based on precedent, not on support for the right to abortion. June v. Russo was the first abortion restriction the Chief Justice has ruled against, and it is unlikely to be the beginning of a pattern.
Knowing this, we consider the decision a limited “win,” given the Supreme Court’s conservative majority, and access to safe and legal abortion is still in danger. The possibility of Roe v. Wade being overturned is real. That threat could have direct impact on Wisconsin, even when the ruling takes place on behalf of other state laws.
In 1849, Wisconsin made it a felony to have or provide an abortion. While that law became unenforceable after Roe v. Wade, Wisconsin never took its criminal abortion ban off the books. This law is incredibly harsh and does not have exceptions for rape, incest, or the health of the mother. The only way an individual could legally have an abortion under this law would be if they were about to die as a result of their pregnancy.
If Roe were overturned, Wisconsin’s criminal abortion law could be enforceable once again, and Wisconsin could return to a time where individuals are simply not allowed to make their own health care decisions.
Based on the SCOTUS’s most recent decision, the Wisconsin criminal abortion ban remains unconstitutional and abortion remains legal in Wisconsin. Although existing restrictions to abortion access may remain in place, many could be found unconstitutional under Whole Woman's Health. These restrictions in Wisconsin include including the 20-week ban, 24-hour mandatory waiting period, mandatory ultrasound, ban on tele-medicine for medication abortion, and prohibition against non-physicians providing abortions. If we do not work to protect women’s reproductive justice, there is room for harsher restrictions.
Our state legislature and Governor have the power to stand between a hostile Supreme Court and the people of Wisconsin. Our lawmakers can protect access to abortion and reproductive healthcare by passing the Abortion Access Protection Act, introduced in 2019 by Rep. Subeck and Sen. Risser, (Assembly Bill 367/ Senate Bill 419), which would repeal the 1849 ban. If the Wisconsin state legislature took action to protect our rights and health, then even if Roe v Wade is overturned, then Wisconsin would not immediately return to the 1800s in our state.
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