Committee Pauses Abortion Travel Fund

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

A County Board committee has hit the brakes on a resolution to create a travel fund for county employees seeking an abortion, given that it could run afoul of state law.

The resolution, authored by Supervisor Ryan Clancy and co-sponsored by Sup. Juan Miguel Martinez, would task 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.”

In June 2022, the U.S. Supreme Court ruling on the case Dobbs v. Jackson Women’s Health Organization effectively overturned the court’s 1974 decision in the landmark Roe v. Wade case that provided a right to abortion protected by the federal government. When Roe was overturned, it returned the issue to state laws. Wisconsin’s own law banning abortion does not make exceptions for rape, incest or the life of the mother.

The amount allowed for travel expenses appears to echo the year that Wisconsin’s abortion ban was codified: 1849. During a meeting of the board’s Personnel Committee, Clancy was asked by a fellow supervisor where the numbers in his resolution came from and he responded, “So the $30,000, and then the just under $2,000 per person, that was borrowed/stolen from our folks over at Dane County.”

Clancy’s resolution is similar to an abortion travel fund approved by the Dane County Board as part of that county’s 2023 budget. But Milwaukee County’s Office of Corporation Counsel told supervisors that Dane County appears to be relying on a broader reading of the relevant statutes

Deputy Corporation Counsel Karen Tidwall read the statutes to the committee governing abortion related restrictions and prohibitions on public funding for abortion related activities. While the statute is not “a model of clarity,” Tidwall said Dane County “has interpreted it more broadly than a corporation Council has.” She told supervisors that her office’s position was that Clancy’s resolution was a “risky proposition” that could be found in violation of state law. She also noted that, if challenged, the case could go straight to the Wisconsin Supreme Court under “original jurisdiction,” a court which currently has a conservative majority.

“Prior to August, when the new justice is sworn in, I would anticipate that it would not survive judicial scrutiny in that particular court,” Tidwall said.

Clancy pointed to the Dane County resolution saying that it shows employees there that “their employer stands with them” and he added that “It exists today as not just a symbolic action, but a real employee benefit.”

“But it’s also clear to me that we have a track record of this already being in place elsewhere in the state being unchallenged,” Clancy said. “And I would say that the status quo right now in Milwaukee County for our employees is bad, our employees do not have access to safe legal abortions within the state.”

The Office of Corporation Counsel has not drafted a formal opinion on the resolution. An informal opinion, obtained by Urban Milwaukee through open records, was offered by Corporation Counsel Margaret Daun in March. Daun told supervisors and county officials from the county executive’s office that, beyond the legal risk to the county, a challenge that ended up before the current Wisconsin Supreme Court could “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,” Daun said.

Tidwall further explained to supervisors that Dane County’s resolution is based on their “interpretation” of the statutes, and that, given the way the U.S. legal system works, “no one can determine the legality or illegality of this resolution except the court. I can’t determine that, Supervisor Clancy can’t determine that, that would have to be decided by a court.”

Clancy also pointed to a recent piece of legislation drafted by Republican state legislators that would prohibit government employees from being directly involved in providing abortion services, promoting or encouraging abortion services, making abortion referrals, or training others or receiving training in performing abortions, as evidence that Republicans are “attempting to preempt with a piece of legislation, which signals that our resolution is something they want to prevent.”

Setting aside questions of legality, Tidwall also told supervisors that insurance and IRS regulations could come into play if it is determined that the fund represents a benefit for employees. The Department of Human Resources was asked to weigh in on this matter, but a representative of the department told supervisors that HR Director Margo Franklin is out of the office and “discussion of a position for Human Resources has not happened and will not happen until director Franklin returns back to the office.”

Sup. Steven Shea made a motion to lay the item over until the next meeting of the board’s Personnel Committee, saying he thought the board needed “greater clarity from the Office of Corporate Counsel and from human resources before we move forward on this resolution.” He added, “I know Supervisor Clancy believes strongly in this, but I do think we need to take a step back for at least a moment on this resolution before we proceed.” Supervisors voted unanimously to lay the resolution over, meaning it will remain in committee until at least next month.

But the proposal was also sent to the board’s Finance Committee, which would approve the resolution and send it to the board irrespective of the Committee on Personnel’s vote.

Update: Story has been updated to reflect that the resolution is also being considered by another committee that could vote to approve, sending it to the full board.