In Wisconsin, an 1849 Abortion Ban May Spark Chaos Post-Roe

MMore than two dozen countries are ready to prohibit abortions in the event that the Supreme Court rules otherwise Roe v. Wade. Then there’s Wisconsin, where a politically divided government, a hotly contested election season, and a 173-year-old law that criminalizes nearly all abortions are making for a potentially chaotic post-Roe landscape.

Midwestern swing states are being re-evaluated by the prospect of the restoration of 1849. Wisconsin’s attorney general, a Democrat, has vowed to not enforce it but can’t stop local officials from doing so. Even though the Democratic Governor. Tony Evers is in favor of repealing the law. However, Republicans hold the state legislature and such efforts are unlikely to succeed. On the flip side, GOP lawmakers are unable to further restrict abortions in the state because of Evers’ veto power.

It’s a reality that is quickly reshaping Wisconsin’s already competitive races for governor, attorney general, and the U.S. Senate ahead of the Aug. 9 primaries.

“This has changed Wisconsin politics in the snap of a finger,” says Mordechai Lee, an urban planning professor at the University of Wisconsin Milwaukee, and a former member of the state assembly and state senate. “The fall election is going to be a referendum on abortion.”

Wisconsin is among 10 states that have a law in place to prohibit abortion. All such laws were nullified after the Supreme Court’s 1973 Roe v. Wade ruling granting a constitutional right to an abortion. But if the court strikes down that ruling this summer—as a leaked draft, first reported by Politico, suggested it would—those laws will automatically be reinstated. 13 red states have trigger laws, which would prohibit or limit abortion rights immediately if a ruling was issued.

Wisconsin’s law is very strict. The act of performing or helping in an abortion is a Class H felony, and can result in up to six-years imprisonment. The consequences are even more severe for the termination of an “unborn quick child,” i.e. a fetus that can move in the womb—a Class E felony punishable by up to 10 years in prison. Abortions are only allowed when there is a risk to the health and safety of the mother. There are no exemptions available for incest or victims of rape.

It didn’t take long after the draft opinion leaked for the battle lines to emerge in the Badger State.

Attorney General Josh Kaul, Wisconsin’s top law enforcement official, has said his office would not enforce the 19th Century law, and urged local officials not to do so either. He has promised to enforce it, according to his leading Republican opponent.

It’s a similar dynamic in the governor’s race, where the winner would largely determine whether Republicans can impose even stricter restrictions on abortions once Roe is tossed out. Evers is 70 and serves as the last defense against the legislature tightening restrictions on abortion access. Five such bills were submitted to him last year and he was able to veto them all. A coalition of 17 governors is his leadership. urgingCongress will pass an abortion right nationwide.

A number of Republican presidential candidates stated this week they will support 1849 law enforcement if elected. “The left wants to enforce mob rule and further degrade law and order in Wisconsin,” says Kevin Nicholson, one of the leading GOP candidates. “Wisconsin needs new leadership—leaders that will follow the law and protect innocent life.” Another candidate, former Lt. Gov. Rebecca Kleefisch was happy to hear the ruling. “It’s about time!” she tweeted.

Close Madison watchers suspect that a Republican in the governor’s mansion would support the legislature passing even tighter restrictions to update the pre-Civil War law, such as adding language to prohibit the use of abortion pills. “That’s a murky area of the law that they may want to address,” says David Canon, a political science professor at the University of Wisconsin-Madison.

“That’s the way it comes into play the governor’s race—stopping any additional legislation that would make access to abortions even more difficult,” Canon added.

The Marquette Law School polled more than 60 percent Wisconsinites in order to determine their support for legalized abortion. This is according to a survey that was conducted over the course of 10 years. The conventional wisdom is already stating that legalization of abortion should be abolished. Roe Key Democratic constituencies would be encouraged, particularly young and women.

However, Wisconsin GOP strategists insisted that voters would be more concerned about economic issues than the availability of reproductive health care. “It will energize the Democratic base in the short term, but in the long term, people are still going to vote on pocketbook issues: inflation, gas prices, food prices, immigration and crime,” says Bill McCoshen, who served as chief of staff to former Wisconsin governor Tommy Thompson.

If Roe is overturned, Lee predicted that the media would be looking for “case number one — a woman who wanted to get an abortion but couldn’t afford to go to Chicago or Minnesota and has to have the kid.”

“I don’t know what’s going to happen before November, but I don’t think voters will need to see a prosecution to feel strongly about the issue,” he added.

This draft opinion could be used to galvanize the U.S. Senate race in which Ron Johnson is running for reelection. On Wednesday, he said that the draft’s contents represented the “correct decision.” The three leading Democrats running to unseat him have vowed to support codifying a right to abortion into federal law.

One of those Democrats, Sarah Godlewski, is currently Wisconsin’s state treasurer, an elected position. She was visiting Washington, D.C., this week for a conference hosted by Emily’s List —an organization that, ironically enough, works to elect women who support abortion rights. While driving to her house, she and a friend learned about the leak Monday evening. According to her, the friend and she quickly turned their car around, heading for the Supreme Court.

She spoke with hundreds as she stood before the courthouse, emphasizing the practical consequences in her state. In this case, abortion access was being restricted once more. “What frustrates me is we’ve had 50 years to codify this into law,” Godlewski said in an interview, raising her voice above the roar of chants. “The Democrats have had the House, the Senate and the White House, and yet we haven’t gotten this done. Now we’re waiting for the final hour to try to pull something together. Enough is enough.”

It didn’t take long for her to make Roe Campaign issue. On Thursday, her first abortion-related advertisement was launched.

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