A Failed New Abortion Law For Wisconsin

Since the repeal of the landmark Supreme Court decision Roe v. Wade last year through Dobbs v. Jackson’s Women Health Organization, the legality of abortion related measures and procedures has been murky in Wisconsin.

The state’s current legislation on abortion is a law from 1849, which states:

1. Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.

2. Any person, other than the mother, who does either of the following is guilty of a Class E felony:

(a). Intentionally destroys the life of an unborn quick child; or

(b). Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother’s death was committed.

5. This section does not apply to a therapeutic abortion, which:

(a). Is performed by a physician; and

(b). Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and

©. Unless an emergency prevents, is performed in a licensed maternity hospital.

6. In this section, “unborn child” means a human being from the time of conception until it is born alive.

As you can see, the law only provides for a “therapeutic abortion” in life-threatening situations. Think back to the 19th century, which lacked telephones, Internet, personal automobiles and other modes of communication and transportation. How many hospitals were there in the state? The qualifications to become a physician were arguably not as strenuous, but how many were there? Considering the limitations of the time frame, how easy was it to get the advice of two physicians in order to save the life of the mother?

It seems to me that for the period, this law provided for essentially a ban on abortion. In 2023, we have modern forms of communication and transportation that mitigate some of the harshness, but the burden the law places on women remains immense and hasn’t kept up with medical advances, either.

Wisconsin Public Radio published a thorough guide for a what is legal and not legal in the post-Roe Wisconsin. Much of the confusion centers around the therapeutic abortions.

Keeping the status quo in regards to abortion law isn’t popular in the Badger State.

According to a 2022 Marquette University Law School poll, 58% of Wisconsinites believe abortion should be legal in all or most cases. According to poll director Charles Franklin, the numbers have stayed relatively “steady” over the past decade. As of September 2022, 72% of Wisconsinites wanted a new law, with 37% wanting an exception for mother’s health, rape or incest, as opposed to 22% who wanted to ‘rely on the 1849 statute.’

Yesterday, the Wisconsin GOP introduced a bill into the state legislature providing “clarification of medical necessity for abortion and exceptions in cases of rape or incest.” One of bill’s sponsors, Representative Donna Rozar (R-Marshfield) issued a statement:

“…I am authorizing this proposal to ensure the health of pregnant women, assisting those dealing with a tragic pre-natal diagnosis, and to protect victims of rape and incest.”

Within a few hours, the bill was dead, as pro-life advocates said the bill went “too far” and pro-choice advocates said it didn’t go “far enough.”

The legislature will have to come up with something else, as the current situation is untenable. The 1849 law is too vague to base life-altering decisions regarding life-altering matters.

The Republicans need some kind of legislation victory if they hope to triumph in the April 4th general election for the open seat on the Wisconsin Supreme Court. In the primary on February 22nd, Democratic nominee Janet Protasiewicz garnered 46.5% and Republican nominee Daniel Kelly (member of the Wisconsin Supreme Court from 2016–2020) garnered 24.2% of the vote.

Conservative Jennifer Dorow got 21.9% and liberal Everett Mitchell got 7.5%, respectively. Ms. Dorow has endorsed Mr. Kelly and Mr. Everett has endorsed Ms. Protasiewicz, according to the latter’s website.

If only a few of Mr. Everett’s voters turn out on April 4th, that should be enough for a Democratic victory.

Mr. Kelly indicated that he would allow the 1849 law to stand per his philosophy of judicial restraint. However, some assert he has ties to pro-life groups and organizations and his rhetoric of judicial restraint is a smokescreen for a pro-life agenda.

The public policy blog Libertarian Jew recently wrote about ‘Drag Queen Story Hour’ and conservative outrage to it. The concluding paragraph is relevant here:

‘Conservatives have not had control over the cultural narrative for at least 15 years. It’s why I needed to be reminded that the Right also has the potential to limit freedom because they do not agree with the way someone thinks, believes or acts.”

I found the mention of 15 years striking. It lines up with what Mr. Franklin said about the Marquette poll numbers for the past decade. The Right struggles to appeal to younger voters, and continues to lose ground in cultural matters. Often, critics assert that their lofty rhetoric about personal freedom ends when they don’t like how you think or act or what you believe.

Further, some critics argue that their abortion stance is a contradiction: limiting or curtailing the rights of the mother for the rights of the unborn child. The Right would counter that through abortion, the unborn baby incapable of defending themselves must be protected. Liberty has its limits, and one of those is a life.

The philosophical and moral ramifications of abortion are too complicated and detailed to discuss in this post, so I will close with how I reflected on Roe v. Wade’s repeal last year:

‘How much input men should have is tricky if you consider a fetus an individual life. Men are required to create, but choose how involved they are in their potential offspring. Whereas women are saddled with a life for up to nine months after initial fertilization.

Random chance and evolution put the burden of pregnancy and childbearing onto women.

Our society should confer them the driver’s seat of the discussion, whatever their position: pro-life or pro-choice.’

I don’t have an exact policy suggestion for the Right, but it’s clear that more accommodation on the abortion issue and others would help them win elections. Nuance doesn’t mean compromising your ideals. Sometimes, it means polishing them.

Agree?