Itn Wisconsin, the Supreme Court’s decision last Friday to overturn Roe V. WadeThe effect was almost immediate: the Justices’ opinion prompted all state medical professionals to immediately stop offering abortions.
That’s because Wisconsin is one of several states that already had a law banning abortion on its books, leftover from before Roe The 1973 constitution established the right for abortion. This case is about 1849. It was in the same year that Wisconsin became an independent state. While the law has not been used in modern times and Wisconsin’s Democratic Attorney General Josh Kaul promised he wouldn’t enforce it, the Supreme Court decision meant that local prosecutors could suddenly choose to act on the law. Providers are now treating abortion as illegal, until the law is clarified.
The state’s Democratic leaders are now scrambling to find that something.
Kaul sued the Wisconsin Governor to question the legality of the 173-year old law. Tony Evers, a Democrat, tells TIME he is “looking at every angle” to protect abortion rights in the state. The politics can be difficult. Republicans control Wisconsin’s State Senate and State Assembly, which limits Democrats’ ability to pass any legislation protecting abortion rights, and both Kaul and Evers are up for reelection this year—facing off against Republican opponents who have promised to uphold the 1849 law. These races in Wisconsin are fast becoming the focus of national attention as voters wait to see if the state bans abortion.
Wisconsin is not the only state that has this policy. About half the states will ban abortion or restrict it severely within months. Twenty states and D.C. have taken steps to ensure access to abortion. However, smaller groups remain in political uncertainty. In nine states, The legality of abortion currently is being challenged. In at least six—Wisconsin, Michigan, Pennsylvania, Arizona, North Carolina, and Kansas—the outcome of the 2022 midterms could determine the future of abortion rights in the near future.
Abortion has become a major campaign issue in most of these nine states. Democrats hope to use the issue as a way to mobilize their base and keep suburban swing voters in their ranks, which have been crucial to their recent success. Republicans, however, are trying to take a more mixed approach. Some GOP candidates in state are increasing their support for abortion bans that have limited or no exceptions. Others, however, remain silent on this topic during the week following the June 24 ruling and focus on other issues, such as the economy, or criticisms of Democrats.
As the full effects of the Supreme Court’s ruling continue to unfold, these state-level races—for governor, attorneys general, state Supreme Court judges, legislative seats, and ballot initiatives—will determine the scope of access in key areas nationwide.
Governors and Attorney Generals
Perfect case studies are available in Wisconsin, Michigan, and Pennsylvania. In all three states, Republicans control the state legislatures and Democrats control the governors’ mansion. The three Democratic current governors have all vetoed any anti-abortion legislation that was passed in the past by Republican legislators. Their presence is the biggest obstacle to the passage of new anti-abortion legislation.
Wisconsin’s Gov. Evers is trying a range of tactics to stop his state’s abortion ban. He convened a special legislative session to repeal the 1849 legislation earlier in the month. Evers offered clemency and a promise to the doctors who were charged by the law. He also said that he would not appoint any state prosecutors willing to follow the law.
“We’re going to do everything we can,” Evers tells TIME. “Thank goodness we have some states around us that can help us provide the services that are necessary, but that’s not the answer. That’s a stop gap.”
Evers also supports Wisconsin attorney general Kaul’s recent lawsuit, which argues that the 1849 ban should be found unenforceable because Wisconsin has passed more recent abortion laws that supersede it, and because the old law had already fallen into disuse even before Roe V. Wade. As the lawsuit is expected to reach the state Supreme Court with a majority of conservatives (4-3), it faces difficult legal challenges. Kaul believes his argument will be successful. “We’re right on the law,” he tells TIME, adding that the consequences of the legal battle are steep.
“We’ve had sexual assault nurse examiners reaching out to our office already to ask about things like emergency contraception, questions about whether the law applies in cases of rape or incest,” Kaul says. “We’ve got this 19th century law that people are going to be trying to apply to 21st century medicine. And unsurprisingly, the language in the statute leaves important questions unclear.”
Continue reading: The U.S. maternal mortality rates may get worse without Roe v. Wade
Both of Kaul’s Republican opponents in the state attorney general race say they would enforce the 1849 law and criticize him for filing suit. “The Attorney General’s job is to uphold the law, not work to overturn it. This is simply another election year stunt to gin up the Democrats’ demoralized base,” former state Rep. Adam Jarchow said in a statement. Eric Toney, District Attorney of Fond du Lac Couny in Wisconsin called the move a “political stunt.”
The Wisconsin governors’ race reflects a similar standoff. All of Evers’ potential Republican opponents have said they would enforce the 1849 law. According to the AP, three of Evers’ potential Republican opponents attended a debate last week and said that they would expel district attorneys who refused to comply with 1849 law.
Wisconsin’s Republican lawmakers have said they may update the 1849 ban next year; Evers says that if he wins reelection, he will veto any such effort.
Marquette University Law School recently polled Evers to show that he was leading all of his Republican rivals. But the race will be close. The Marquette poll, which was conducted a week before the Supreme Court’s decision on RoeAccording to a study, Republican voters are more excited about voting than Democrats. But Celinda Lake, a veteran Democratic pollster, says that with abortion suddenly a “surging concern,” Democratic voters may be newly motivated. The issue of abortion “was already a very clear distinction in a number of the races,” she says. “If anything, the differences have become more stark, and I think it could massively influence Senate races and gubernatorial races and AG races.”
Continue reading: Democrats want Biden to do more on abortion, but he faces tricky legal challenges
Like Wisconsin, Michigan has an old abortion ban on the books—this one from 1931— that makes abortion a felony with no exceptions for rape or incest. It’s temporarily blocked in state court, due to a lawsuit brought by Planned Parenthood. Democratic Governor Gretchen Whitmer also filed suit against the law’s 91-year old, alleging that it violates due process and the equal protection clauses in the state constitution. She recently reiterated a call for the state’s Supreme Court to consider her case and decide whether Michigan’s constitution protects the right to abortion.
Whitmer and Democratic Attorney-General Dana Nessel will also be up for reelection. And, like Wisconsin’s Republican opponent, they say that the Republican opposition would not lift the 1931 ban.
Pennsylvania’s state-level races, in which abortion is legal for up to 24 weeks, have similar problems. Pennsylvania already has many restrictions regarding abortion, including Gov. During his term, Tom Wolf (a Democrat) has vetoed numerous anti-abortion legislations.
Wolf is unable to run for re-election due to term limits. Josh Shapiro from Pennsylvania, the Democratic candidate for Wolf’s replacement, said that he would also oppose any restriction on abortion. Doug Mastriano (his Republican opponent), has stated that he would support a complete ban on abortion with no exceptions.
If Mastriano wins in Pennsylvania, the Republican-controlled legislature is all but certain to change the state’s abortion laws, which would be a huge shift for one of the most populous states in the country. Even if Wisconsin and Michigan ban abortions, the Upper Midwest would be left with limited access.
An increased focus on the state legislatures
Some states, such as Arizona and Georgia have already made it clear that abortion will be limited by November’s midterm elections. But the make-up of state legislatures could still determine future changes in the states’ abortion laws.
Arizona’s 15-week abortion ban is set to take effect in September. The state also has a 1901 law on the books that criminalizes all abortions unless the pregnant person’s life is in danger. The state’s Republican Attorney General Mark Brnovich announcedOn Wednesday, he asked a court for an order to remove an outdated injunction prohibiting the 1901 law. This would allow it to go into effect. Brnovich is up for reelection, and the state’s Republican Gov. Doug Ducey’s term limit means that both these positions may change this year.
Arizona has the potential to be a stronghold for Democrats in state legislative elections, which are currently held by a narrow majority of Republicans. “The Roe ruling gives us an opportunity to go more on the offensive,” says Jessica Post, president of the Democratic Legislative Campaign Committee (DLCC), which helps Democratic candidates for state legislature.
The DLCC hopes to pick up seats in Arizona and Pennsylvania’s House and Senate, as well as in Georgia’s House this year. It will make a play to flip Republican majorities in New Hampshire and Michigan, and in Minnesota’s Senate. Post claims that there has been an increase of support for abortion at the DLCC. The group received $650,000 within 48 hours of the Supreme Court draft being leaked. In the first 48 hours after the Court’s decision last Friday, it raised nearly four times what it had the previous month at that time.
Democrats look to ‘not-radical’ mainstream Americans
Democratic strategists believe the party will focus its efforts on suburban voters. They expect them to be motivated by the Supreme Court’s ruling to get out the vote. David Cohen, cofounder of Forward Majority, which focuses exclusively on races in the state’s legislatures, said that Maricopa County, Phoenix, and Philadelphia suburbs, are especially attractive for Democrats.
“This Court has a radical view of the future. And in my experience with swing voters, they’re not radical. That’s the whole deal,” says Cohen. “This perspective is going to be uniformly rejected by people who are mainstream Americans.”
North Carolina has many suburbs surrounding Raleigh and could be a state in which the legislature can help to decide the future direction of abortion policy. It is possible to have an abortion in North Carolina for as long as 20 weeks. Democratic Governor. Roy Cooper will not be up for reelection in this year’s election. However, Republican legislators are seeking a majority that is veto-proof. This would enable them to adopt new restrictions on abortion. This goal is possible: Republicans hold 28 of the 50 state Senate seats, two shy of the veto-proof majority and 69 of the 120 House seas, three less than what they require.
In 2023, Virginia’s state legislative elections will be key to abortion access there. Democrats spent millions to try and defeat Republican Governor. Glenn Youngkin, who highlighted his pro-abortion views last year, was elected to the office. Youngkin is calling for the minimum of a state-wide 15-week abortion ban and said that he would be open to stricter restrictions. “Virginia will be a huge state of focus for us in 2023. We have to take back the House and hold on to the Democratic majority in the State Senate,” Post says.
These are high stakes. Virginia is home to many patients from out of state, including those who are coming from South Carolina where abortion has been banned. People would need to travel further to get appointments if the sanctuary of abortion rights was lost.
Continue reading: What will the Anti-Abortion States’ Abortion Providers Do After Roe?
Looking at state Supreme Courts
According to, Partisan majority could be changed in the fall by state Supreme Courts across North Carolina and Ohio. BoltsThe identifies down-ballot races. North Carolina is dominated by Democrats with a 4-3 majority. A change could result in significant changes to access to abortion. While a Democratic majority could repeal state abortion restrictions, a Republican majority is more likely to keep them in place. Democrats want to alter the balance of power in Ohio, which is currently dominated by Republicans.
Democrats have to defend Michigan, Illinois and other states where they risk losing their state Supreme Court Majorities. The DLCC is planning to throw its support behind races where state Supreme Courts could weigh in on redistricting fights and determine a state’s legislative control.
Ballot Initiatives
Vote initiative is the final major means by which midterms might impact access to abortion. Kansas is the most prominent example. On Aug. 2, voters in Kansas will vote on whether or not to amend their state constitution. NotProtest abortion rights. Amendment gives Republican-dominated states the power to pass abortion bans or restrictions. This would reverse a previous ruling from the state’s majority-Democrat Supreme Court, which said in 2019 that the Kansas constitution protects the right to bodily autonomy.
Kansas currently allows abortions for up to 22 weeks. It is a state with the most abortion access. Democratic Governor. Democratic Gov. So without the state constitution’s protection, Kansas is likely to see more abortion restrictions.
Michigan Democrats also hope to have a ballot measure in November that codifies abortion rights. Although supporters still need to collect signatures in order for the measure be eligible, this could be an alternative way that advocates of abortion rights seek to safeguard the procedure.
Many of these abortion laws in battleground states won’t be settled until at least November, but the landscape for access is likely to keep changing even before then. More states are expected to ban abortion in the coming weeks, and the Supreme Court’s ruling has kicked off a host of legal battles over laws that are already in place. As more of the country restricts access to abortion and other forms of reproductive health care, this year’s elections in the remaining states—where laws are unclear and partisan control is on the ballot—now carry extraordinary weight.
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