Howard Schweber on the Status of Abortion in Wisconsin Law

Frederica Freyberg:
Parties on opposite sides of whether abortion is legal in Wisconsin want the state Supreme Court to settle the question. Even as abortions are now being performed in the state after a Dane County court ruled last summer that a 174-year-old law on the books does not use the term “abortion” and only prohibits attacking a woman in an attempt to kill her unborn child. Sheboygan County District Attorney Joel Urmanski had appealed that ruling and argues the 1849 statute does indeed prohibit performing abortions except to save the life of the mother. He now wants to bypass the appeals court and allow the high court to consider the matter. Likewise, Wisconsin Attorney General Josh Kaul wants the case to go directly up to avoid prolonging harm, he says, caused by the confusion in Wisconsin law that existed following Dobbs. Kaul will argue in favor of the Dane County ruling and that the state Constitution protects women’s rights over their bodies. For more on this, we turn to emeritus professor of political science and affiliate faculty member at the UW Law School, Howard Schweber. Thanks very much for being here.

Howard Schweber:
Thanks for having me.

Frederica Freyberg:
So how gnarly of a case is this for the Supreme Court to unpack or are the issues clear-cut?

Howard Schweber:
It’s as gnarly as they want it to be. It’s worth pointing out the 1849 law is not the only law at issue. There’s a 1985 law that says after 22 weeks, abortions are permitted only where the life or health of the woman is at risk. And there are a series, actually, of other lesser-known laws I think. There’s a 2015 law that effectively makes that limit 20 weeks. There’s an informed consent law. There’s a 24-hour delay law. In 2019, there were no fewer than five bills passed out of the Legislature to restrict abortion. So this is a live issue — four of which the Governor Evers vetoed. So this is a very live issue and it’s not just the question of are abortions allowed or up until what point, but there’s a whole series of laws that could be at stake in a ruling by this court. The court has, of course, a new majority regarded as liberal, which is assumed to be more friendly toward abortion rights, but for both sides, it is useful to get clear answers. I think for the pro-life side, it would be useful partly, of course, just to know what the rules are but partly to use this as a mobilizing issue in 2025, excuse me, when Justice Bradley will come up for re-election and in the 2024 campaign. Previously the abortion issue has benefited Democrats. I think there’s a feeling on the part of some Republicans that can be turned around if voters think that the pendulum is swinging too far in the other direction. Conversely, of course, pro-choice advocates would like to see this court strongly rule in favor of abortion rights and settle these issues once and for all. I have to say, I think the most likely outcome is one that will perfectly satisfy neither side, which is something to the effect of saying the 1985 law is valid and remains in force and that way avoiding the question of the 1849 law altogether by simply saying if it did apply to abortion, it’s been superseded. That would be the easy, efficient solution, and frankly, it’s the one I’m hoping the court will take.

Frederica Freyberg:
I was going to ask you about that because my reading of the Kaul petition to bypass says if the Dane County ruling doesn’t hold, he will also argue that the modern abortion laws supersede the 1849 law and so you think the Kaul case stacks up pretty well there?

Howard Schweber:
It certainly gives the court an easy solution, one that is not politically extreme or legally extreme. The Wisconsin Constitution certainly permits the 1985 statute unless we read — interpret it in a fairly dramatic way, so I think it stacks up legally and it stacks up politically in a way that I think would serve this court’s interests very well and frankly I think would serve the interest of the people of Wisconsin reasonably well, keeping in mind that Wisconsin is a genuinely divided state on this issue, as on so many others.

Frederica Freyberg:
So Kaul also argues that the Wisconsin Constitution protects a woman’s right to control her body, freedom over the direction of her life and equal protection under the law. Wouldn’t the other side argue that there’s a constitutional protection of an unborn child?

Howard Schweber:
Well, not exactly. So a constitutional protection of a right to life applies to the state. The government can’t take your life away. That doesn’t mean that the government has to protect you against a private person. Of course, we have laws against murder, but there’s no constitutional requirement that there be a law, for example, against let’s say vehicular homicide. Of course we want those laws, but they’re not constitutionally required. So the other side’s argument isn’t really strong if it tries to work from the idea of fetuses having rights. The strong argument is assuming that there’s a sufficiently important, and sufficiently powerful legislative interest at stake here to override whatever rights are asserted, and, of course, no rights are absolute, whether it’s a free speech right or right to abortion or anything else. Any assertion of a right can be overcome by a sufficiently strong societal interest. So that’s the question. What is the scope of this right and then once that right is defined, what is the scope of the government’s legitimate interest despite the existence of a constitutional rights guarantee.

Frederica Freyberg:
So once the U.S. Supreme Court threw the issue of abortion back to the states, are there any other states in a situation like Wisconsin litigating over a 174-year-old law?

Howard Schweber:
I’m not aware of any other state in this specific situation, although there are a number of states that have what are called trigger laws. Laws that were on the books but unenforceable while Roe was enforced that immediately came into effect when the Dobbs decision came down. Certainly lots of states are wrestling with this question. The most disingenuous part of the Dobbs opinion, frankly, was when the majority said that the decision will turn this question back to state legislatures. Of course what it’s done is turn the question back to state courts, and that’s what we’re seeing play out in Wisconsin. And as you say, elsewhere as well.

Frederica Freyberg:
Howard Schweber, thanks very much.

Howard Schweber:
My pleasure.