Here & Now

Reversing Roe v. Wade and Wisconsin Abortion Law

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.