Questions Linger Over Post-Roe Landscape in Wisconsin

When the the U.S. Supreme Court released its decision Friday overturning federal protection for abortion, questions arose around what a post-Roe Wisconsin will look like.

Wisconsin is one of 21 states with trigger laws or pre-Roe laws in place that will likely ban or restrict abortion following the decision. In Wisconsin, it’s an 1849 law that makes providing an abortion a felony. The 173-year-old law makes no exception for rape, incest, physical health or lethal fetal anomaly. The procedure is only permissible if deemed medically necessary to save a pregnant person’s life.

The Supreme Court’s 1973 decision in Roe v. Wade made abortion a right protected by the constitution. But without a federal law codifying that right, it’s now in the hands of states.

Planned Parenthood of Wisconsin (PPWI) representatives denounced the Supreme Court’s decision to strike down Roe v. Wade in a press conference Friday afternoon, calling the decision “dangerous and chilling.”

President and CEO Tanya Atkinson, Medical Director Dr. Kathy King and Director of Legal Advocacy Services Michelle Velasquez were present.

“Today, a physician treating a pregnant patient with medical complications will now face felony criminal charges and imprisonment if a prosecutor disagrees that the medically indicated abortion they performed was indeed life saving enough,” King said. “There is a real risk that medical care will be compromised.”

Of Planned Parenthood’s three Milwaukee locations, one offers abortion services. Following the leak of a draft decision in May, the clinic suspended the scheduling of abortion appointments beyond June 25. But when the news broke this morning, the waiting room was full of patients.

Approximately 70 patients were scheduled for abortion procedures June 23 and June 24. If they wish to access the procedure, they will now have to travel to another state.

“Until we receive clarification on the enforceability of that law,” Velazquez said, “we will suspend providing abortion services and continue to explore all of our legal options.”

More than 80 prosecutors across the country, including Milwaukee County District Attorney John Chisholm, signed a commitment to not prosecute those who “seek, provide, or support abortions.”

Because of that, it’s possible, said Sara Benesh, that abortion procedures may eventually resume despite the 1849 law.

“Wisconsin, and a couple other states, are in this weird position of having these really ancient laws that were, in effect, deemed unconstitutional by Roe v. Wade, but have remained on the books because we generally don’t clean up our statutes,” said Benesh, chair of the political science department  at the University of Wisconsin-Milwaukee.

Wisconsin’s current legislature and senate are both controlled by Republicans, though Democratic Governor Tony Evers does maintain a veto over legislation that requires a two-thirds majority to override. It’s unlikely that anything will happen until the balance of partisan power changes in the state legislature, Benesh said

Barbara Zabawa, co-chair of the master of healthcare administration program at the University of Wisconsin-Milwaukee, pointed to the dissenting opinion released by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, noting that it echoes warnings from activists that the decision could mark the beginning of a long-term attack on rights currently considered protected by the constitution, including the use of contraception and same-sex marriage.

The dissent was concerned that we’ve entered a slippery slope of rights being revoked, she said. “Those kinds of state laws could, if challenged, use this Supreme Court decision today as justification for keeping those laws relevant and legal. So, those other rights that we’ve come to, you know, rely on—anything really related to our right to privacy,” she said. “Really, I mean, it could be threatened.”