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The following program is a PBS Wisconsin original production.

Frederica Freyberg:

Wisconsin pro-choice supporters respond to a leaked U.S. Supreme Court draft opinion that overturns Roe v. Wade. State unemployment benefits can hurt some people more than they help. And a growing movement to help pollinators.

I’m Frederica Freyberg. Tonight on “Here & Now,” a Wisconsin biologist pollinates the idea of “No Mow May.” An attorney says people are paying big for mistakes made when applying for unemployment benefits. Zac Schultz explains the political calculations of overturning Roe v. Wade, and a former state Supreme Court justice on the legal landscape of abortion law in the state. It’s “Here & Now” for May 6.

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Funding for “Here & Now” is provided by the Focus Fund for Journalism and Friends of PBS Wisconsin.

Frederica Freyberg:

The leaked Supreme Court draft opinion overturning Roe v. Wade this week caused immediate reaction nationwide and at home because the implications of the ruling, expected to be issued formally in late June, are that abortion will no longer be legal in many states, including Wisconsin. We’ll talk about how the leaked draft shakes up politics in Wisconsin just ahead of elections with Zac Schultz at the Capitol. But first, we turn to Marquette University Law School professor and former Wisconsin Supreme Court , Janine Geske. Thanks very much for being here.

Janine Geske:

My pleasure. Thank you.

Frederica Freyberg:

So as to the high court draft opinion on Roe v. Wade, I heard you say you think stability of the law and precedent are important. Should this draft become the final ruling, what do you think about whether it upsets precedent causing instability?

Janine Geske:

Well, it certainly upsets precedent. We’ve had precedent for 50 years with some modifications, slight modifications, which is a normal process. I think it really does cause instability. It turns everything upside-down. We’re going from suddenly saying it’s a constitutional right of women to be able to make this decision about their own bodies, that if that opinion is adopted, that there is no constitutional right to that privacy and that the states can make their decisions as to what rights they want to give women.

Frederica Freyberg:

So does throwing everything upside-down, is that a bad thing?

Janine Geske:

Well, I think it is. You know, there are times it is needed, you know. Discrimination in schools in Brown versus Board of Ed and those kinds of cases, it was clear historically had to be changed. This has been a tough, tough issue for this country. We have very divided populous on the issue. But I think that slight modifications in moving with it is something people can adjust to. I think there is — there’s already been a reaction, there will be a huge reaction, frankly either way it goes in the summer. And I think it’s unfortunate that there’s going to be such — if that opinion is right, such an upheaval, what’s been the law for 50 years.

Frederica Freyberg:

The U.S. Supreme Court would throw the issue now of abortion back to the states. Wisconsin for its part has had an 1849 law on the books that reads, “Any person other than the mother who intentionally destroys the life of an unborn child is guilty of a class H felony.” So it prohibits Wisconsin doctors from performing abortions except to save the life of the mother and allows for up to six years in prison and $10,000 in fines. Under your reading of that 173-year-old law, would it mean that the mother could induce, say, a medical or medication abortion without penalty?

Janine Geske:

Under that law, it appears that. But I do believe there’s a 1950 law that also made it criminal for a woman to self-procure an abortion, and so — and I suspect that our legislature is probably going to go in that direction and clarify that. But under the older law clearly it was only somebody giving or delivering an abortion, it was not the person who is having the abortion performed on her.

Frederica Freyberg:

Not withstanding some of those modifications, can courts really depend on a 19th century law that just lands back on the books?

Janine Geske:

Well, it’s challenging, and I see our attorney general is raising that issue of whether or not that law becomes almost extinct, but you know, I think that’s a tough argument. It’s on the books, the legislature has decided for whatever reason not to remove it all those years, and so I think it does become the law unless it’s modified again by the legislature. And so we’ll see what happens. I know the attorney general has said he’s not going to enforce it, but we have 72 counties with prosecutors who would certainly be able to do that.

Frederica Freyberg:

So as to that, would the district attorneys in the 72 counties be able to decide whether to enforce or not?

Janine Geske:

Well, that’s an interesting question. I believe they could. Prosecutors have a fair amount of discretion of when to issue charges and not issue charges. It’s pretty rare, though, that a prosecutor says I’m never going to enforce a law under any circumstances. And I’m sure there would be an attempt by those who believe that it should be prohibited to bring in what we call a mandamus action

or declaratory judgment action in a court to force a prosecutor to charge it or to appoint a special prosecutor. But prosecutors have a lot of discretion, so I just see there’s going to be a lot of litigation, which gets back to our instability in the law. We’re going to have to make all sorts of new cases and the legislators who have not dealt with this issue for a very long time, suddenly are going to be very involved in this issue, and an issue that people care very much about.

Frederica Freyberg:

Very much has been made about the leak of this draft Supreme Court opinion on Roe v. Wade with some saying it’s not the leak at issue, it’s the meat of the ruling. What is your opinion of the leak?

Janine Geske:

It’s very serious. It is very important that the court is working and trying to draft and come to a conclusion on a final decision, remain confidential. And you know, when I was thinking about this draft, it could be anything from the chief justice saying to Justice Alito, you believe that it should be totally removed. Write that decision and let the rest of us react to it. And then we’ll write and see whether we modify it or we — it sounded like during questioning, that Justice Roberts might be interested in just upholding the Mississippi law. So you know, a first draft rarely stays the same to the final draft, and the fact that it’s been leaked, now people are going to think that the public reaction is going to influence the decision, because everybody’s had a chance to see it. And that’s unfortunate.

Frederica Freyberg:

We’ll see what the final opinion looks like. Janine Geske, thank you very much.

Janine Geske:

Thank you. My pleasure.

Frederica Freyberg:

Wisconsin political leaders quickly shared their impressions of what this news means for Wisconsin. Governor Tony Evers along with 16 other governors penned a letter to the leaders of Congress calling on the U.S. Senate to take up the Women’s Health Protection Act, which could codify the right to abortion into federal law. Over Twitter, Democratic Senator Tammy Baldwin said, “If SCOTUS is going to legislate from the bench and turn back the clock 50 years on Roe v. Wade, then the Senate needs to pass my Women’s Health Protection Act and if we need to eliminate the filibuster to get it done, we should do that too.” Republican Senator Ron Johnson only reacted to the leak saying, “The goal of this unprecedented breach is to intimidate sitting Supreme Court justices. This is yet another example of how the radical left intends to fundamentally transform America,” he said.

National polling shows 70% of Americans think abortion should be between a woman and her doctor. With 58% saying abortion should be legal in all or most cases. In Wisconsin, public opinion surveys show about 60% of respondents think abortion should be legal in all or most cases. If those are the majority opinions on the matter, where does that leave pro-life politicians just ahead of the midterm elections, which include races for governor, U.S. Senate and attorney general? We take this question and others to senior political reporter Zac Schultz, who joins us from the Capitol. Thanks for doing so, Zac.

Zac Schultz:

Thanks, Fred.

Frederica Freyberg:

So with polling showing this majority support of Roe v. Wade, how does that translate to what voters do at the polls?

Zac Schultz:

Well, we have to remember that polling has been pretty static for at least a decade or longer that we’ve been taking these polls. Opinions haven’t changed very much. But the voting trends don’t match up. And this isn’t the only issue where what people approve of polling-wise doesn’t translate to how they will actually cast a ballot in the election box. There are a lot of people on either side, left or right, who are very firmly one issue voter. They vote on abortion only. And then a lot of people in the middle who may say they feel one way or the other, but that’s not the reason that they cast a ballot for a member of one party or another. And so we don’t know whether this will actually change that. Remember, anyone under the age of 70, this is the first time in their lifetimes that they’re voting on abortion in the ballot in Wisconsin. Before this, Roe v. Wade was always a constitutional requirement that meant no matter their feeling, no matter who they voted for, the right to access abortion rights were not going to change in Wisconsin but that may likely not be the case this fall.

Frederica Freyberg:

Does it at all complicate things for candidates like Rebecca Kleefisch or other Republicans who are staunchly antiabortion, this kind of public sentiment about it?

Zac Schultz:

Well, it’s a question of, for them, of whether those voters will change their minds and actually vote on abortion if they believe that abortion access should be legalized. That could be a risk which is why you’re seeing a lot of Republicans not saying very much on this issue right now. On the flip side, Democrats are trying to make it a bigger issue to see if some of those voters may change their minds. But there’s absolutely a risk here. I think the more likely electoral impact could be energizing the base in off years. In these gubernatorial elections, you see turnout go down quite a bit and often it’s whichever party loses more voters from the presidential election is likely to lose overall. If you can retain those voters, if you have more voter enthusiasm over an issue like abortion, you could see higher turnout. Whoever retains that enthusiasm is more likely to help their candidate.

Frederica Freyberg:

Meanwhile Democrats like Tammy Baldwin are calling to codify Roe v. Wade and eliminate the filibuster to do it, how likely is that?

Zac Schultz:

It’s not likely at all. I mean, Democrats have talked about eliminating the filibuster throughout this session but they don’t have the votes to do it. They didn’t before, they don’t now. This is just to put everyone on the record going into the fall. Democrats hope to try and pin this on some of these key battleground issues of getting someone like Senator Ron Johnson on the record. He’s already on the record. We know where he stands, but they want to put one more vote on the record.

Frederica Freyberg:

Meanwhile the GOP is so very angry about the leak. Is that a tell that they’d rather speak to that than the draft opinion itself?

Zac Schultz:

Well, it’s traditional in politics that if you don’t want to talk about the thing because you don’t think it helps you, then you talk about process. That happens historically whenever there’s a controversy. It’s either process or it’s the issue that people are concerned about. So it’s process right now for Republicans. If they see a shift where they think this actually helps them, then they’ll talk about it. If not, they’ll focus on what matters to them most. And there’s a trap here for Democrats too because if they focus strictly on abortion leading into the fall elections but it doesn’t shift some of those traditional Republicans or independents who support abortion but vote on other issues, then they lose the opportunity to win those voters if they’re not talking about the economy or jobs or other things that matter most to them.

Frederica Freyberg:

Down to the nuts and bolts of it, it is true that there’s nothing Tony Evers could do about Roe v. Wade being overturned because he can’t veto a statute like Wisconsin’s that criminalizes abortion and has been on the books for more than 170 years, he can’t veto an existing statute?

Zac Schultz:

No, he has no power in this area. He has some executive authority for how some state agencies might interact but really, he’s out of this question when it comes to laws right now. The attorney general does have an impact. We’ve already seen Democrat Josh Kaul say that he doesn’t plan on using any DOJ resources to prosecute anyone over these laws in the future and Republicans have said that they likely would at least entertain those thoughts, so it’s more likely to play out on that race than with the governor.

Frederica Freyberg:

How important does all of this make the next Wisconsin Supreme Court race in Wisconsin for both sides?

Zac Schultz:

Well, it was already a pivotal race, it was already going to be the highest spending Supreme Court race in state history. Just because we know right now it’s 4-3 conservative power with Justice Brian Hagedorn swinging occasionally with the liberals in voting with them much to the chagrin of a lot of the conservatives but this is for Pat Roggensack’s seat, she’s expected to retire and that seat will determine the balance of the court. So on this issue and so many more issues, it was already going to be a huge thing. So it will be a lot of attention placed on that and so many other issues for that race next April, not this fall.

Frederica Freyberg:

Right, so the reason it would be important before this court is because it is likely that notwithstanding the fact that the governor, should he win the election, he couldn’t veto it, but then it’s likely to go to the legislature potentially to tighten up the language in our existing statute or face lawsuits otherwise.

Zac Schultz:

Yeah, if Governor Evers is the governor, then absolutely we could see constitutional challenges for this old law and if Republican governor is in place, then we’ll see constitutional challenges in there so this will still likely end up in the courts as everything else does here in Wisconsin.

Frederica Freyberg:

That’s right. Zac Schultz, thank you. Thank you so much.

Zac Schultz:

Thank you, Fred.

Frederica Freyberg:

The latest weekly jobless claims in Wisconsin show just under 4,000 first time filers and a little over 21,000 continuing claims according to the Department of Workforce Development. This is a far cry from during the depths of the pandemic, when hundreds of thousands of people sought unemployment benefits with long wait times of weeks and months for payment. The Evers administration is trying to fix what it calls an antiquated unemployment insurance computer system, but according to our next guest, the process is still a mess, leaving thousands of filers facing warrants for overpayments. Victor Forberger, a labor and employment attorney, joins us from Madison. Thanks very much for being here.

Victor Forberger:

Thank you for having me.

Frederica Freyberg:

I want to talk about those warrants in a minute, but DWD says on its website that the average amount of time claimants wait to get paid is about 50 days. But then they say that’s a cumulative number since March of 2020. What are the actual wait times like right now?

Victor Forberger:

It’s hard to tell because it’s what I’m seeing with various claimants, they win decisions or they get initial determinations, and then they wait and they call up and I tell them to call up and they’re just told, it has to go to manual processing or it has to be processed. So the data you’re looking at is for these cases to be adjudicated and then a decision to be issued. That doesn’t mean somebody is necessarily going to get paid. That just means a decision is issued. There are waits then for appeals, for hearings, and right now, because many, many cases were lost at the hearing stage and then appealed to the Labor Industry Review Commission, they have a 6 to 12 month delay right now. So —

Frederica Freyberg:

So it’s a lot of hurry up and wait type stuff when you get to that level of it. But going back to kind of just the normal process at the height of pandemic job losses, the system obviously did not hold up under the crush of claims. Have there been improvements in the system and the process, especially as unemployment is now so low?

Victor Forberger:

Not that I’ve seen. There’s still huge delays and problems because it’s still an incredibly difficult and complicated process. People are not able to follow it because it’s asking them to have a familiarity with unemployment law as if they were an attorney or an experienced claim filer that’s been doing this for 20 years. And they’re not. And so they’re confused and they can’t get straight answers, and they’re making mistakes then.

Frederica Freyberg:

So what you say you’re dealing with as an attorney working on behalf of clients getting jobless benefits is that the state is cracking down on claimants for overpayments, which you say are often unintended mistakes made on that application. How big is this crackdown?

Victor Forberger:

It is tremendous right now because it’s so easy to make a claim filing mistake. And then there are various things the department does that just — it’s not following its own law, and so people are being penalized. And the amounts are huge, especially when the department, because — well, because the department presumes a claim filing mistake is intentional, it then presumes it’s fraudulent. And so the penalties that were enacted back in 2013 and 2014 make these kinds of mistakes enormous. And the department has an incentive because they pocket 25% of the administrative penalty. So if you owe $10,000, $2,500 of that is going into the program integrity fund.

Frederica Freyberg:

How easy is to make mistakes on the application for unemployment?

Victor Forberger:

It’s — I mean, there are compound questions, so a question that’s really tricking people up right now is, if you are — were applying for PUA benefits, you’re self-employed. The question was, are you self-employed or — no, the question is, are you receiving working and covered employment or are you self-employed? People look at the second part of that question and they’d answer, well, no, I didn’t have any self-employment work that week. So they might have been working at 7-11 that week for 10 hours.

Frederica Freyberg:

You’re making it sound as though this is by design on the part of this state agency. Do you think it’s by design or it’s a bug of what the Evers administration calls an antiquated system?

Victor Forberger:

Well, this isn’t really doesn’t have anything to do with the computer system. It has to do with the questions that are being asked. And so how you ask those questions and how you frame those questions, that’s — as you’re a reporter, so you need to write stories in clear English, speaking clear English so people understand. That’s what claim filing should be. The model claim filing language is supposed to be at a 6th grade level. And if you look at the claim filing questions, it’s very obvious, it’s full of legalisms, and abstract concepts. So it’s very difficult for people to understand how am I supposed to understand what am I supposed to report? You’re supposed to report your vacation pay. What if you’re paid PTO? What if you’re paid flex time? Where do you put that? And if the employer puts it in a different category, well, then now you’ve misreported your wages.

Frederica Freyberg:

And so the solution here in your mind, one of them, would be to rewrite these questions in plain language?

Victor Forberger:

You’ve got to simplify and make this as easy as possible, and there are basic concepts we all know, like you start with the general and then you get specific because people will be familiar with general ideas before you start asking them specific. The claim filing process starts with the specific. You know, you’re asked specifically, did you get holiday pay? They’re not asking you, can you get any wages at all this past week? That’s not a question being asked.

Frederica Freyberg:

It does sound complicated and there’s more to talk about with this but for now, Victor Forberger, we leave it here. Thank you very much.

Victor Forberger:

Thank you.

Frederica Freyberg:

This month, you may hear less lawnmower sound and more buzz about “No Mow May.” With declining bee populations concerning the scientific community, one Wisconsin biologist took action in his own backyard. Our next guest brought “No Mow May” to Appleton three years ago, and the idea has bloomed across the state and the country. Israel Del Toro joins us from Appleton. Thanks very much for being here.

Israel Del Toro:

Thanks for having me. It’s a pleasure to talk to you.

Frederica Freyberg:

So how did this idea take hold in Appleton and continue to pollinate elsewhere?

Israel Del Toro:

Yeah, definitely it generated a lot of buzz. Sorry about all the bee puns. But yeah, I can’t help it anymore. But it generated a lot of buzz in town. There’s people who love it, people that hate it, but it’s really overall a great tool for communicating and educating our neighborhood about pollinator awareness and making sure that our pollinators are being protected. As you may have heard, pollinators are in decline globally, so this is a way to get that conversation started just here in our neighborhood.

Frederica Freyberg:

Why is May the month to hold back on bringing out the lawnmower?

Israel Del Toro:

Yeah, why not “No Mow May” — or why not “No Mow June?” The idea here is pretty simple. We live up in the north — midwestern U.S., and what that allows us to do is that May is a time period where things are just starting to wake up out of hibernation. So just now, you start seeing bees buzzing around. And so right now as species are coming out of hibernation is a critical period to provide them foraging resources they might not have. By the time June rolls around, there’s a whole suite of plants available to them to choose from, but that’s why those early blooming species like dandelions and clovers are really important to boost our pollinator population numbers here in Wisconsin.

Frederica Freyberg:

So I want to let you know we did assign our videographer to find some bees but he did not. Have you been able to see positive results from the practice of “No Mow May” yet?

Israel Del Toro:

Absolutely. Yeah, absolutely. The first year we did this study was in 2020 and we measured bee biodiversity here in the city of Appleton. What we found was that because of the practices of “No Mow May” or reducing our mowing intensity, we increased pollinator abundance five times and pollinator diversity three times. So that’s the number of species is three times higher in areas that are not mowed relative to areas that are mowed. So it’s really promising to see these increases. We saw the same trend last year when we expanded to other cities across the state and we hope to keep doing in our neck of the woods for the foreseeable future.

Frederica Freyberg:

Meanwhile places like Little Chute and Menasha have banned the practice with one saying this won’t solve the pollinator problem and another saying there’s zero tolerance for people who do not mow their lawn. What is your response to that?

Israel Del Toro:

They’re our neighbors, right and we want to make sure we stay friendly with our neighbors, just like I might stay friendly with my neighbor across the street who may want to mow their lawn. So if Little Chute and Kaukauna — sorry, Little Chute and Menasha want to continue to implement their practices, that’s fine but we encourage them to start thinking about other ways that they can beneficially impact our pollinator population. So things like removing invasive species, planting more native species, reducing our dependency on chemical use and fertilizer use like herbicides and pesticides. All of those are great things that are going to go a long way in protecting our pollinators. “No Mow May” is just one tiny little piece of the puzzle.

Frederica Freyberg:

And it’s catchy. But why are bees and pollinators so important to the environmental ecosystem?

Israel Del Toro:

Bees and pollinators are extremely important because they’re responsible for a major ecosystem service: pollination of our crops. So in the U.S., pollination by insects is valued as a multibillion dollar a year industry. One in every three foods that we eat, for example, is dependent on insect pollination. In Wisconsin, we are major producers of cranberries and we depend — entire communities depend on economies around things like Door County cherries or apple orchards. All of those are dependent on insect pollination so if we care about the food we eat, we should be thinking about the pollinators that do that work for us.

Frederica Freyberg:

And we do. Israel Del Toro, thanks very much for joining us.

Israel Del Toro:

Thank you for having me. Have a great day.

Frederica Freyberg:

For more on this and other issues facing Wisconsin, visit our website at PBSwisconsin.org and then click on the news tab. That’s our program for tonight. I’m Frederica Freyberg. Have a good weekend.

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Funding for “Here & Now” is provided by the Focus Fund for Journalism, and Friends of PBS Wisconsin.