In Wisconsin, an 1849 Abortion Ban Could Make for a Chaotic Post-Roe Landscape

More than two dozen states are poised to ban abortions if the Supreme Court overturns 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.

The prospect of a restoration of the 1849 statute has upended the midwestern swing state. Wisconsin’s attorney general, a Democrat, has vowed not to enforce it but can’t stop local officials from doing so. And while Democratic Gov. Tony Evers supports repealing the law, Republicans control the state legislature, where such efforts will go nowhere. 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 one of 10 states with a pre-existing law to ban 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. Thirteen red states also have so-called trigger laws that would immediately outlaw or curtail abortion rights if such a ruling is issued.

The Wisconsin law is notably stringent. It constitutes performing or assisting in any abortion as a Class H felony, punishable by up to six years in prison. 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. The law only allows for abortions when the health of the mother is at risk. It does not include any exemptions for victims of rape or incest.

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. His leading Republican challenger has said he would enforce it.

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, 70, currently serves as the only defense against the legislature beefing up restrictions on abortion access. Last year, he vetoed five such bills that were sent to his desk. He is also leading a coalition of 17 governors urging Congress to pass a nationwide right to abortion.

Several Republican candidates for governor made clear this week that they would support enforcement of the 1849 law 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, celebrated the leaked 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.

More than 60 percent of Wisconsinites support legalized abortion, according to polling conducted by the Marquette Law School over the last 10 years. And the conventional wisdom has already formed that the overturning of Roe would motivate key Democratic constituencies, particularly women and young people.

Wisconsin GOP strategists, however, insisted that the electorate would care more about the economy than access to reproductive 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.

The leaked draft opinion may also become a galvanizing force in the U.S. Senate race, where the Republican incumbent, Ron Johnson, is up 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. She and a friend heard about the leak Monday night while driving to the house where she was staying. Almost immediately, she says, they turned the car around and headed to the Supreme Court.

As she stood in front of the courthouse that evening among hundreds of others, she emphasized the practical implications in her state, where access to abortion had become endangered once again. “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.”

Godlweski didn’t wait long to make Roe a central campaign issue. By Thursday morning, she launched her first abortion-related ad of the midterm season.