Announcer:
The following program is a PBS Wisconsin original production.

Hannah Jurss:
Madam Chief Justice, and may it please the court, the question is whether 940.04 (1) is enforceable so as to ban all abortion in Wisconsin except those necessary to save the pregnant woman’s life.

Frederica Freyberg:
Abortion comes before the liberal leaning state Supreme Court and the U.S. Senate candidate who lost the election refuses to concede.
I’m Frederica Freyberg. Tonight on “Here & Now,” abortion comes before the Wisconsin Supreme Court but that won’t end its politics going forward. Record setting public school referendums and a whopper K-12 budget proposal. What the President-elect’s policies could mean for Wisconsin Hispanics, and what history can teach us about Trump’s promises. It’s “Here & Now” for November 15.

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

Frederica Freyberg:
This week, the Wisconsin Supreme Court heard oral arguments on whether the state’s 1849 abortion ban is the law of the land. The law went into effect when the United States Supreme Court overturned Roe v. Wade in 2022. Abortions halted in Wisconsin until September of 2023, when a Dane County judge ruled the law actually referred to feticide. “Here & Now” senior political reporter Zac Schultz was at the hearing and tells us no matter what the court decides, abortion as a political issue is not going away.

Zac Schultz:
When the U.S. Supreme Court issued the Dobbs decision, Republicans said the court was simply returning the issue to the states.

Brian Hagedorn:
I mean, we’re trying to get it right, I hope not just get an outcome here.

Zac Schultz:
It turns out that’s a little more complicated than it sounds.

Jill Karofsky:
We’re trying to figure out if medical providers here are going to be able to save women’s lives. So yeah, we better get this right.

Zac Schultz:
Over nearly two hours of oral arguments Monday, the members of the Wisconsin Supreme Court heard arguments along several lines about which of Wisconsin’s many laws regulating abortion should apply.

Hannah Jurss:
The state of Wisconsin cannot have two laws on the same subject, with the same scope, that provide directly conflicting answers as to when conduct is and is not a felony.

Zac Schultz:
The heart of the issue is this. In 1849, Wisconsin passed a law outlawing abortion referred to in arguments by its statutory number 940.04. In 1973, the U.S. Supreme Court issued Roe v. Wade, which created a constitutional right to abortion health care. The old law was unenforceable. In the years that followed, Wisconsin passed several laws regulating abortion. Most recently a law in 2015 that created a cutoff of 20 weeks with an exception for the life of the mother, but no exceptions for rape and incest. So, with Dobbs overruling Roe, which law should apply? Lawyers representing Democratic Attorney General Josh Kaul and doctors intervening in the case argue the 1849 law was impliedly repealed when the laws were updated after Roe was in effect.

Diane Welsh:
The legislature has spoken and they’ve laid out a myriad of statutes that govern when abortion can be provided, when women in this state can obtain lawful abortions.

Zac Schultz:
Justice Brian Hagedorn says the court can’t ignore those later laws were trying to comply with Roe and never actually repealed the original ban.

Brian Hagedorn:
We all know what happened so unless there’s some conflict, the laws were not reversed off the books. I don’t know why, as a matter of straight, just reasonable statutory interpretation, the law is still there. It’s still there. The judiciary doesn’t get to edit laws. The judiciary doesn’t get to rewrite them. We didn’t delete it. We prevented its enforcement. Now it’s still there. How can we just say, “Oh, we can’t enforce it anymore simply because the legislature was doing other things when it was unenforceable.”

Jill Karofsky:
All of that body of law, all of those statutes regarding abortion, just go to the dust pile?

Attorney:
No, that’s not what we’re saying at all.

Jill Karofsky:
But it is what you’re saying because you’re saying that if they were passed after Roe and if they were passed with Roe in mind, then they mean something different today than they meant before Dobbs.

Zac Schultz:
The liberals on the court hold a 4-3 majority, and if they rule the 1849 abortion ban was impliedly repealed, it would mean that, ironically, it was a law passed by Republican Governor Scott Walker in 2015 that saved abortion in Wisconsin.

Rebecca Dallet:
Our legislature decided fairly recently, at least in the scheme of these, these regulations, that an abortion may not be performed after 20 weeks unless the mother is undergoing a medical emergency. That’s not based on Roe. That is the legislative policy that was chosen by this state’s legislature.

Zac Schultz:
No matter how the court rules, the issue of abortion is not settled law, a point made clear by Chief Justice Annette Ziegler.

Annette Ziegler:
The issue before this court relates to 940.04, whether Black rules, whether it’s impliedly repealed, whether it’s still on the books, it won’t answer every question for everyone today. People need to be before the legislature and ask them to do their job.

Zac Schultz:
After all, the balance of the court could change in the Supreme Court election next April or a different governor and legislature could write a new law, a point made by Attorney General Kaul after the hearings.

Josh Kaul:
Whatever happens in this case, the issue, I don’t think, is going to be permanently resolved in Wisconsin. Certainly, this will provide important clarity, and I think we’ll at least for a time period, address at least what current Wisconsin law says.

Zac Schultz:
Reporting from Madison, I’m Zac Schultz for “Here & Now.”

Frederica Freyberg:
Wisconsin’s Republican U.S. Senate candidate has not yet conceded his loss to Democrat incumbent Tammy Baldwin and when results are certified, could pay for a recount if she won by 1% or less. This week Eric Hovde posted a video raising the specter of fraud in the election process.

Eric Hovde:
Many people have been wondering why I have remained quiet since election night. I believe it’s better not to comment until I have the facts.

Frederica Freyberg:
But in the four-minute video, Hovde called the election results improbable and made a slew of false statements alluding to election fraud. He went on to say he was shocked by late results out of Milwaukee, when a final batch of absentee ballots were officially tabulated. This 4 a.m. update bumped his opponent, Tammy Baldwin, above him to clinch the race. Absentee ballots always are reported later, resulting in later returns. Hovde also called out what he called voting irregularities in Milwaukee. To that, the city’s election commission responded “The Milwaukee Election Commission unequivocally refutes Eric Hovde’s baseless claims regarding the integrity of our election process. Every aspect of the commission’s operations was conducted with transparency and in strict adherence to established laws and procedures. It is both expected and routine that absentee ballots over 100,000 in this case, are counted and reported in the late hours of election night due to Wisconsin’s high voter turnout and the rigorous verification standards the Milwaukee Election Commission upholds.”
In education news, it was a year that saw Wisconsin voters approve a record number of referenda to boost spending in local school districts to the tune of $4.4 billion. At the same time, the state superintendent of public instruction wants to increase state K-12 funding by a total of new proposed spending of more than $4 billion. Meanwhile, in Washington, moves to eliminate the U.S. Department of Education. Lots afoot. We check in with Christopher Saldana, professor of K-12 educational leadership and policy analysis and thanks for being here.

Christopher Saldana:
Thanks for having me.

Frederica Freyberg:
So in terms of DPI’s $4 billion budget request, it calls for funding 90% of special education costs. What’s your reaction to that?

Christopher Saldana:
I think it’s a great proposal. I think schools are federally mandated to provide education for students with disabilities and for the last, at least since for the last 20 years, school districts have had to fund the majority of that. So I think currently the state reimburses about 30% of spending on public education, and school districts have to supply 70% of those costs, and that those funds come from their general funds. So those are supposed to be dollars that are supposed to support all students in general education classrooms.

Frederica Freyberg:
But is this request on the part of the Department of Public Instruction kind of more aspirational than real, at least politically?

Christopher Saldana:
I think that’s a question for the legislature. I think that’s a question for what our values are in the state of Wisconsin. I think special education is something that we want to ensure that’s provided to every single student, regardless of their disability or need. And I think currently, because of the different financial capacity that school districts have, there’s a huge amount of variation in what school districts can afford. So having the state step up and play a bigger role in funding special education creates greater, greater equality of opportunity for students who have disabilities, whether they’re in a small rural district or in a large urban district like Milwaukee.

Frederica Freyberg:
Why have we allowed it to be so underfunded for so long in the state of Wisconsin?

Christopher Saldana:
That’s a great question, too. I think one of the things that folks are very familiar with, in particular because of the recent referenda that have been requested on the parts of districts, is that funding for any public service, any public good, requires tax dollars. And I think from the state’s perspective, there is this question about raising revenue for providing adequate public education for students and for far too long, the answer to that question has been to just not fund public education, because it’s easier. You don’t raise taxes on people. You don’t face the repercussions of that kind of political action.

Frederica Freyberg:
So the Wisconsin Policy Forum reports that this past year was a record year for the passage of these referenda, as we said, $4.4 billion but they have also noted a decline in the passage of these over the years. Do you think there is kind of referenda fatigue?

Christopher Saldana:
I think, you know, when you come to someone who is doing their best in their life to try to pay their bills, and you say, we have this need for public schools, I think generally folks across the state of Wisconsin, folks across the country support public education. But when you’re asking them to pay $100, $200, $300, $400 more in property taxes per year, that starts to hit people’s wallet. And I think it becomes a question of, can I afford this? I think this is very closely tied to Dr. Underly’s budget proposal at DPI, because I think what she’s proposing is to say let’s provide additional state revenues that are going to alleviate some of these referenda questions and are going to provide some relief for local taxpayers by providing state funding.

Frederica Freyberg:
And yet, school districts over the years have really not had a choice but to go to the local voters. Right?

Christopher Saldana:
That’s right. As years go by, costs rise. You have to pay teachers more, health care costs rise, you have to repair your buildings. All of those things cost more and more money. I think people are now very intimately familiar with inflation. Those things exist within school buildings, too, and within school districts. And so if the state provides the same amount of funding over time with no inflationary adjustments, then districts have no other option but to ask their communities to foot the bill.

Frederica Freyberg:
Meanwhile, in Washington, there is a move to eliminate the U.S. Department of Education. What are the implications of that?

Christopher Saldana:
I, I don’t think it’s entirely clear yet. I think there’s this argument that we should eliminate aspects of government. One of the proposals being eliminating the Department of Education. I think there is an argument that then the control over education should go back to states. I think there’s a — there’s this myth that states and local communities don’t already control their education. States constitutionally do decide what happens in schools. They determine curriculums. They determine standards. Local school districts do folks elect their school boards. A lot of that, that decision making power is local control. But what would happen, I think, is unclear because of the programs that the Department of Education has. They administer funding for students in poverty. They administer funding for students with disabilities. They ensure that those students aren’t discriminated against, and then they provide a ton of research for education, which is really the innovation wing of our country’s educational system. But it’s very unclear what abolishing the Department of Education means. Does it mean no more funding for students in poverty? No more oversight of discrimination? Or is it really a reallocation of those responsibilities in the administration of those funds to different agencies?

Frederica Freyberg:
I guess we will find out.

Christopher Saldana:
That’s right.

Frederica Freyberg:
All right. Professor Christopher Saldana, thanks very much.

Christopher Saldana:
Thank you.

Frederica Freyberg:
The Wisconsin DNR has approved a wetland and waterway permit to Enbridge for its controversial oil pipeline through and around the Bad River Band of Lake Superior Chippewa Reservation. The permit allows Enbridge to conduct construction, meeting more than 200 conditions for wetlands and waterways standards. Enbridge is proposing to replace 20 miles of existing pipeline, including portions within the reservation and 41 miles of new pipeline routed around it. The company still needs additional federal permitting. Tribal officials said the construction would devastate area wetlands and streams and endanger wild rice beds. “I’m angry that the DNR has signed off on a half-baked plan that spells disaster for our homeland and our way of life,” Band River Band Chairman Robert Blanchard said in a statement. “We will continue sounding the alarm to prevent yet another Enbridge pipeline from endangering our watershed.” A tribal lawsuit to remove the pipeline from its land altogether awaits a decision in federal court.
A growth in Hispanic voters who cast their ballots for Donald Trump helped him win Wisconsin and nationally. This even after Trump promised mass deportations and said immigrants poison the blood of our country. What were the drivers for Latinos to vote for the now President-elect? And what will Trump’s policies mean for them? We turn to Jorge Franco, CEO of the Hispanic Chamber of Commerce of Wisconsin. And nice to see you again.

Jorge Franco:
Frederica, thanks for having me. Wonderful to be with you again.

Frederica Freyberg:
So we spoke with you ahead of the election. Were you surprised the part Hispanic voters played in the result?

Jorge Franco:
I actually was not. There was a lot of rumblings already. The big concern for Hispanic voters certainly was the economy, the inflation that was in some cases just staggering. And I think that having lived that for numerous years, I think just drove many people to support former President Trump, now president-elect Trump and, and of course, his numbers showed in all segments, not just the Hispanic vote. So it was — in particular those of us who work in the low income community and community development, the pain factor is pretty high. And I think people are looking for a new day and that’s, you know, the outcomes spoke for themselves.

Frederica Freyberg:
So is it your sense that a Trump presidency will help reduce the cost of living, even though he talks about tariffs and other things?

Jorge Franco:
You know, and I will say that in my limited understanding, the inflation and the complexity of the factors that go into that, I’m not holding my breath on that particular note, to be candid with you. What I’m more focused on is how do we increase the income levels of those in our low and moderate income communities, not just here in Wisconsin, but across the country. And my work in Washington actually takes me down that path. So, you know, already the Federal Reserve mandates to control inflation and to optimize employment are like this. They’re contrary to each other in many ways and that leaves them in a conflicted situation. And frankly, focusing on the opportunities as a result of the job growth in America is going to be much more fertile and productive than what may or may not happen to the prices that we’re all being impacted by.

Frederica Freyberg:
So now that we’ve seen the change agents that Trump wants to appoint to his cabinet and elsewhere, do you take seriously his call for mass deportations?

Jorge Franco:
Well, I do and I don’t and I want to explain. So certainly the folks that, you know, he’s entitled, he won the election, certainly a resounding win for him. And so any president is entitled to bring their staff in and bring their select and pick and choose who they want to come in and work with them, subject to the advice and consent of the Senate and all that. We’ll see how that all plays out. But having said that, the question in my mind is, will the people, many of them returning, some of them already there before during his first presidency, will they be open to objective analysis and input that helps us all appreciate what’s important to GDP for Americans, because that in great part drives revenue to the government, enabling to pay its bills. And certainly, you know, the, the, the, the debt, the, the U.S. debt is, you know, has got to be dealt with. No doubt. You can’t just let that continue to roll out of control. But there are numerous factors and the question in my mind is, will individuals be open to receiving that input? And frankly, in the community, the economic stakeholders like the farmers in Wisconsin, dairy, agriculture, I mean, we’ve got to get ourselves organized so we have an effective message to share in an appropriate way and at the appropriate time, and sooner the better.

Frederica Freyberg:
Really, because does the need for workers in the U.S. and Wisconsin make these kinds of mass deportations untenable?

Jorge Franco:
The Wisconsin economy is so dependent on tens of thousands of immigrants working in agriculture and dairy, and in farming communities, and you take all that away, and the Wisconsin economy will tank. What does that mean for the American economy if any one state’s economy goes in the tank is a whole other analysis and discussion to have. But it’s a complexity of issues and you know, we have a history of working with everyone and anyone in what we do. And that’s just the mandate I have from the people who are, you know, the board of directors of the Hispanic Chamber and our members. My task is to go work with anyone and everyone and do the best we can to help those issues come to light so the best decisions are made in the interest of the economy.

Frederica Freyberg:
Great. Jorge Franco, thanks very much. Thanks for your time.

Jorge Franco:
You’re very welcome, Frederica. Nice to be with you.

Frederica Freyberg:
How does president-elect Donald Trump make America great again? There are certainly signposts, beginning with his promises of mass deportations, tariffs and America First policy like not wanting the U.S. to fund Ukraine. And how does this MAGA movement align with days of yore? We turn to an expert on the 1940s and ’50s UW-Madison professor of journalism, Kathryn McGarr. And thanks very much for being here.

Kathryn McGarr:
Thank you for having me.

Frederica Freyberg:
So what are the historical kind of parallels to current political issues in your mind, that risk repeating America’s loss of civil liberties?

Kathryn McGarr:
There are two main areas for concern, I think. The first is loss of free speech rights and free press. And so we have a long history of passing sedition laws in this country, starting with 1798, the Alien and Sedition Act, when John Adams wanted to silence his political opponents in the Democratic-Republican party. That one lapsed but then again, World War I, the Woodrow Wilson administration gets another Sedition Act passed, and it’s really a draconian measure to punish anyone who speaks, not just against the government, but even questioned the war effort, the draft, anything at all, and was upheld by the Supreme Court. The second area is loss of civil liberties by minority groups. And so one of the most significant in the 20th century would be the internment of Japanese Americans in World War II. And Franklin Roosevelt accomplished that entirely through executive order. So we need to remember that the president does have a lot of power and that some of this happens through Congress, and some of it happens through executive order.

Frederica Freyberg:
So the America First Movement has been a populist political theory through history. In fact, it became Donald Trump’s kind of foreign policy doctrine as president. What does America first hold?

Kathryn McGarr:
America First really came out of the 1930s and was a movement to keep the United States out of war in Europe, and this was coming off the heels of World War I, when the United States had participated in World War I and an effort to prevent participation in World War II. They established an America First Committee in 1940. It ended up disbanding after Pearl Harbor, but the sentiment never went away, and it was sort of revived as a political party here and again. And it’s really about putting American security first in foreign policy but so many of the spokespeople at the time and over the years have been pro-fascist and antisemitic that those have been major cornerstones of the America First movement.

Frederica Freyberg:
Were there positives to it?

Kathryn McGarr:
Small — a small “f” — America first has been pretty much the policy of every president who puts American security first. The capital “A” America first because that other part of it is already settled that the president will put first in foreign policy. It really does seem to be more about putting a certain type of America first. And it’s a white Christian nationalist America.

Frederica Freyberg:
There’s been a lot of talk about Donald Trump seeking revenge against his political enemies and his words “the enemy within.” When a historian like yourself hears those words, what kind of parallels do you see?

Kathryn McGarr:
It sounds so much like the 1940s and 1950s. The second Red Scare and the Lavender Scare that came along with it. So the Red Scare, as most of your viewers will know, is the effort to root out communists in the federal government, but it really spread to other institutions and businesses throughout the nation and a lot of people lost their jobs for having just been associated with communism. And then the Lavender Scare, which was eliminating any homosexuals from the federal government and again, spread to other institutions. And so it’s really about any kind of subversion, political subversion, or at the time, what was considered sexual subversion. Now, Donald Trump has specifically mentioned Marxists and Communists. He talks about that a lot. He talks about journalists as enemies of the state. And while I don’t think there would be a repeat of the Lavender Scare, he certainly considers trans people to be enemies of the state. And so I think we often see these parallels between sort of political subversion and subversion of what’s considered traditional gender roles.

Frederica Freyberg:
What lessons from history can we learn as we go forward?

Kathryn McGarr:
I try to always remind my students of two things. One is that history is not inevitable, and we don’t know what’s going to happen. We can’t predict it. Another is that it’s not linearly progressive, so we like to think of America as always progressing, people getting more rights, but rights expand and contract all the time. And the culture expands and contracts all the time. So we saw this most recently with reproductive rights contracting. We’re also now seeing voting rights contracting again. So keeping in mind that we’re not necessarily on a one way path.

Frederica Freyberg:
Kathryn McGarr, thanks very much.

Kathryn McGarr:
Thank you for having me.

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.