University of Wisconsin-Madison’s Collaborative for Reproductive Equity (CORE) says Wisconsin already restricts many aspects of abortion, including banning government-funded insurance coverage, limiting availability through family planning programs, requiring mandatory counseling, ultrasounds and waiting periods for medication and surgical abortions and gestational limits, among other restrictions.

For example, Wisconsin law only allows licensed physicians to perform abortions, even though other medical professionals including nurse practitioners, certified nurse midwives and physician assistants can and do provide safe abortions in other states.

In Wisconsin, doctors must provide counseling and obtain spoken consent, both in person, at least 24 hours before administering care. In practice, a limited number of physicians can mean much longer waits between appointments — which can put patients beyond the 20-week gestational limit.

“None of these restrictions are evidence-based,” said CORE director Jenny Higgins. “There’s no medical reason for any of these restrictions. So just on that alone, these restrictions should be seen as onerous.”

Early law less restrictive

When originally passed in 1849, Wisconsin’s abortion ban was markedly less restrictive. According to the Legislative Reference Bureau, it classified the “willful killing of an unborn quick child” as first-degree manslaughter.

A “quick child” referred to a fetus that had noticeably moved in the womb. Prior to reliable testing, this was often the first indication of pregnancy. Quickening typically occurs “near the midpoint of gestation,” according to James Mohr, who wrote a 1978 book on the history of abortion in the United States.

Wisconsin’s original law, then, prohibited abortion only after an observable change that occurred about halfway through pregnancy, and sometimes as late as 25 weeks.

This statute became more restrictive in the following decade. By 1858, lawmakers had removed the reference to quickening, prohibiting abortion of an “unborn child” — language that remains in the statute today.

Wisconsin Assembly Speaker Robin Vos, R-Rochester, has been mum on the Republican majority’s plans for legislation if the U.S. Supreme Court overturns Roe v. Wade, which established a constitutional right to an abortion. He is seen at the Wisconsin State Capitol in 2020 in Madison. (Credit: Coburn Dukehart / Wisconsin Watch)

In addition to undergoing multiple revisions over the generations, Wisconsin’s pre-Roe abortion law has also faced legal challenges that complicate its interpretation and enforceability.

In 1970, just three years prior to Roe v. Wade, a panel of federal judges in the Eastern District of Wisconsin decided a case called Babbitz v. McCann. A physician sought an injunction against the Milwaukee County District Attorney E. Michael McCann, arguing that the abortion statute was unconstitutional.

The court agreed, holding that under the Ninth Amendment to the U.S. Constitution, a woman has “the basic right … to decide whether she should carry or reject an embryo which has not yet quickened.”

According to UW associate law professor Miriam Seifter, the judges found a right to privacy based on precedents dating back to the late 19th century. The opinion concluded that the “mother’s interests are superior to that of an unquickened embryo,” regardless of whether that embryo is “mere protoplasm,” in the view of the physician, or “a human being,” in the view of the Wisconsin statute.

But the impact of that decision is complicated, Seifter said. As a federal district court decision, it’s “not formally binding.” Instead, it serves as “persuasive authority” — and may seem less persuasive depending on the Supreme Court’s eventual ruling in Dobbs. In other words, although the judges in 1970 found a federal constitutional right to abortion in Wisconsin, courts today are not required to follow that ruling.

There’s a “tangled series of abortion-related laws in Wisconsin,” Seifter added. “Most likely some court will need to figure out whether those statutes are enforceable or compatible (and) how to read them together.”

And any challenge filed in state court would likely end up before the Wisconsin Supreme Court, currently controlled by a 4-3 conservative majority. Justice Brian Hagedorn, sometimes deemed a swing voter, was endorsed by two Wisconsin anti-abortion groups.

Little access to abortion in Wisconsin

Today, Wisconsin has only four clinics providing elective abortion procedures: two in Milwaukee, one in Madison and one in Sheboygan. Planned Parenthood of Wisconsin operates three of the four clinics, and Affiliated Medical Services operates one of the Milwaukee locations.

Sheboygan’s Planned Parenthood clinic only provides medication abortion, which is induced through pills, and Wisconsin has some of the strictest medication abortion laws in the country.

Pro-abortion rights protesters hold up signs as they listen to speakers May 3, 2022, in front of the Wisconsin State Capitol in Madison. Abortion in Wisconsin faces an uncertain legal landscape if the U.S. Supreme Court overturns the landmark Roe v. Wade decision. (Credit: Angela Major / Wisconsin Public Radio)

The UW-Madison’s CORE notes that nearly 70% of Wisconsin women between the ages of 15 and 44 live in a county that lacks an abortion care clinic. That statistic does not account for transgender men and non-binary people who also could become pregnant.

Higgins said cost is a key barrier to accessing abortions. Federal law prohibits federal Medicaid funding for abortions. Wisconsin law prohibits state, local or federal funding for programs that “provide, promote, or encourage abortion services or make abortion referrals,” according to CORE.

Wisconsin’s Medicaid and BadgerCare health insurance programs do not cover elective abortions except when deemed medically necessary or following sexual assault or incest that has been reported to law enforcement.

Research shows people often seek abortions because they cannot afford to raise a child, but the cost of abortion often remains out of reach. Research also shows that women who are denied wanted abortions suffer physically, psychologically and financially for years afterwards — conditions their children suffer too.

Post-Roe agenda unclear

Meanwhile, Wisconsin’s Republican legislative leadership remains mum on any post-Roe plans.

Assembly Speaker Robin Vos, R-Rochester, and Senate Majority Leader Devin LeMahieu, R-Oostburg — as well as ardent abortion opponent Sen. André Jacque, R-De Pere — did not respond to Wisconsin Watch’s emailed questions about their plans. Vos’ staff shared a prepared statement that read, in part, “I’ve always been proudly pro-life. If this is the final ruling, it will empower states to make their own decisions.”

Wisconsin Democrats have tried and failed to shore up abortion rights, and at this point, any attempts to pass new legislation would be largely symbolic.

“Our ability to actually present and pass legislation that would attain what we hope, which is unimpeded access to reproductive health care, will probably not be successful,” said Senate Minority Leader Janet Bewley, D-Mason, who is not running for re-election.

Senate Minority Leader Janet Bewley, D-Mason, says if the constitutional right to an abortion is overturned by the U.S. Supreme Court, Democrats in Wisconsin would be unable to protect it. “Our ability to actually present and pass legislation that would attain what we hope, which is unimpeded access to reproductive health care, will probably not be successful,” says Bewley, who is not running for re-election. She is seen here at the Wisconsin State Capitol in Madison in 2017. (Credit: Coburn Dukehart / Wisconsin Watch)

Two prominent anti-abortion groups in Wisconsin celebrated the possible end to Roe, but they have separate visions for the future.

Wisconsin Right to Life, a non-religious organization, supports exceptions that allow for medically necessary abortions, legislative director Gracie Skogman said. However, the group opposes an exception for rape or incest — which also is not in the 1849 law.

“Our position has always been to support women who are in their utmost need, and when we think about the heartbreaking situation of rape, that is the utmost violence against women,” she said. “But an abortion only continues that cycle of violence.”

Matt Sande, legislative director for Pro-Life Wisconsin, argues that removing a medical exception will not prevent people from obtaining life-saving treatment for ectopic pregnancies — which involves removing a non-viable embryo from the fallopian tubes — because “legally such operations are not considered abortions.”

The leaked U.S. Supreme Court draft in Dobbs, and current and proposed legislation in states like Texas and Louisiana, also raised alarms that lawmakers might eventually criminalize people who have abortions — or even use contraception. In Texas, a district attorney charged a woman with murder for a “self-induced abortion” — even though murder legally does not apply if a woman terminates her own pregnancy. Eventually, he dropped the charges.

Both Pro-Life Wisconsin and Wisconsin Right to Life say they’re not seeking to criminalize people for having abortions. Wisconsin law did criminalize women who sought an abortion starting in 1858 — later rendered unenforceable by court decisions— but such a penalty remained on the books until 2012.

Pro-Life Wisconsin also opposes contraception, claiming on its website that birth control leads to the “attitudes and even moral character that are likely to lead to abortion.” But Sande says the group has no plans to push for a legislative ban on contraception.

Who would enforce the law?

In the interim, while court battle lines form, access to abortions will certainly diminish.

Planned Parenthood of Wisconsin will pause providing abortions “until there’s clarification from the court of competent jurisdiction, declaring that (1849) law is not enforceable,” said Mike Murray, vice president of governmental relations for Planned Parenthood of Wisconsin, the largest provider of elective abortion care.

Planned Parenthood of Wisconsin says it will stop providing abortions at its three clinics in the state if the U.S. Supreme Court overturns the landmark Roe v. Wade case. The nonprofit says it will wait until a court determines whether an 1849 Wisconsin law that bans all abortions except to save the life of a mother takes effect. (Bill Martens / WPR)

Were physicians to continue providing abortions in any of the four clinics — or in any other setting — enforcement of laws prohibiting abortion would lie with prosecutors.

“When it comes to holding people accountable, it would be a question of, are investigative agencies going to investigate?” Kaul said.

So long as the Democrat remains attorney general, the Wisconsin Department of Justice will not investigate abortions, he says. But Kaul is facing re-election in November. Two of his Republican challengers, Fond du Lac County District Attorney Eric Toney and former lawmaker Adam Jarchow, have both tweeted support for a decision overturning Roe. Toney also criticized Kaul’s refusal to enforce the old law. He declined to provide additional comment on the record, and Jarchow did not respond to emails requesting comment.

Local prosecutors in Dane, Milwaukee and Sheboygan counties — which currently have abortion clinics — could choose to pursue charges against providers if abortions continued.

None of these district attorneys — Democrats Ismael Ozanne and John Chisholm and Republican Joel Urmanski — returned multiple emails and phone calls asking if they would prosecute physicians providing abortions if Roe is overturned. However, in 2020, Chisholm signed an open letter announcing he would not prosecute anti-abortion laws.

All three district attorneys’ terms end in 2025. The Wisconsin statute of limitations for most felony charges is six years, meaning their potential successors could pursue charges targeting physicians who provided abortions after Roe was struck down — even if the current district attorneys declined to do so.

The future of abortion rights in Wisconsin, then, likely lies at the ballot box, in statewide and local elections for governor, attorney general, Supreme Court, state Legislature and district attorney.

“It’s scary,” said Jennie Klecker, out on the Sauk City bridge. Klecker’s life was saved by removing an ectopic pregnancy that occurred between the births of two of her children.

“I’m here for their future. I’m here for my future and (the future of) women in general.”

The nonprofit Wisconsin Watch collaborates with WPR, PBS Wisconsin, other news media and the University of Wisconsin-Madison School of Journalism and Mass Communication. All works created, published, posted or disseminated by Wisconsin Watch do not necessarily reflect the views or opinions of UW-Madison or any of its affiliates.