Supervisors Propose Abortion Travel Fund

Pro-choice rally at Red Arrow Park. Photo taken June 24, 2022 by Graham Kilmer.

Two Milwaukee County supervisors want to create a fund covering travel expenses for Milwaukee County employees traveling out of state to access abortion services.

The resolution, authored by Sup. Ryan Clancy and co-sponsored by Sup. Juan Miguel Martinez, would direct the county’s Department of Human Resources to “identify an appropriate vendor and implement a contract to provide reimbursement of travel expenses, up to $1,849, for transportation, accommodations services, and related costs, incurred by Milwaukee County Employees traveling to other states to receive legal abortion care.” The specific amount allowed for travel expenses echoes the year that Wisconsin’s abortion ban was codified: 1849.

In June 2022, a ruling by the U.S. Supreme Court on the case Dobbs v. Jackson Women’s Health Organization effectively overturned the ruling in the landmark Roe v. Wade case that provided a right to abortion and returned the issue to state laws. Wisconsin’s law, which does not make exceptions to the ban for rape, incest or the life of the mother, went into effect.

Clancy told Urban Milwaukee that his resolution is “recognizing that our employees have legitimate medical needs that can’t always be met in state,” and that the government should not be interfering in matters of “bodily autonomy.”

But would a publicly-funded abortion travel fund be legal under state law? The county’s Corporation Counsel Margaret Daun wrote an opinion, obtained by Urban Milwaukee through an open records request, that called the state’s abortion ban “despicable” and the Dobbs decision “regressive, oppressive, discriminatory, and dull-headed,” but nonetheless concluded that Clancy’s resolution was “nearly certainly illegal” under state law.

Her opinion, sent to county officials on the board, the county executive’s office and The Office of Government Affairs, said the resolution does not comply with state law, exposes the county to legal risk and potentially jeopardizes future abortion rights should a legal challenge “generate terrible case law that could further and disastrously limit local governments’ and private sector employers’ ability to redress the horrific stripping of health care decision-making from women.”

Clancy had previously discussed the possibility of such a fund and was advised by corporation counsel that it would likely be illegal, and in her opinion emailed to county officials, Daun wrote, “Other options abound and we would be happy to advise regarding same.”

Daun pointed to two state statutes to support her office’s conclusion, one of them titled “Prohibitions on funding for abortion-related activities” that explicitly states that a local government cannot use funds of “any local government unit” to  make a “grant, subsidy or other funding that wholly or partially or directly or indirectly involves pregnancy programs, projects or services.”

Daun added that she had also discussed these issues with Planned Parenthood Wisconsin and the American Civil Liberties Union, and “The concerns we note here are shared by these subject matter experts.”

Daun’s opinion warned that “legislative initiatives on this subject should not be approached ad hoc, without the necessary intention and careful calibration (including timing strategy) accomplished through thoughtful coordination with subject matter expert advocacy experts and expert legal counsel. That has not occurred here.” She noted that the lawsuits establishing same-sex marriage rights took “a coordinated multistate effort that spanned over 10 years.”

“With these sorts of risk and with stakes this high, the [Office of Corporation Counsel] further cautions that it could be reasonably anticipated that criticisms could be leveled that this amounts to nothing more than self‐promotional grandstanding,” Daun wrote. “Furthermore, this may force the sponsor’s colleagues and the County Executive to vote on something based on legal realities – necessitating a “no” vote (or veto in the case of adoption) – which could then be disingenuously used to attack those that support reproductive health care, but responsibly legislate within the bounds of the law, despicable though it may be.”

Urban Milwaukee asked Clancy about the corporation counsel’s opinion. He said, “We have lawyers for a reason, and one of those reasons is to keep us out of court; the other one is that if we’re doing the right thing that they would defend, you know, our actions, when we’re trying to do the right thing by our employees, and it is absolutely the right thing to do.” He added, “It’s the right thing to do, regardless of quibbles about state law.”

Clancy isn’t the only one to espouse this view. The Dane County Board passed a $20,000 appropriation for the creation of a travel expense account for employees seeking abortions in its 2023 budget. Though, Milwaukee County’s attorney’s have disagreed with other counties on what complies with state law in the past.

Clancy also pointed to legislation currently being circulated by two Republican legislators, state Rep. Andre Jacque and Rep. Elijah Behnke, that, according to an analysis by the Legislative Reference Bureau, would prohibit government employees from “providing abortion services, promoting or encouraging abortion services, making abortion referrals, or training others or receiving training in performing abortions,” as proof that there exists daylight in current state law about what is currently illegal.

Read the full Office of Corporation Counsel opinion here. Read the full travel fund resolution here.