James Heimer
Originally published March 17, 1989
If the U.S. Supreme Court overturns Roe v. Wade, its 1973 decision legalizing abortion, the implications for Wisconsin are immediate and clear. Wisconsin Statute 940.04 will automatically become law. Abortion, other than to save the life of the mother, will be illegal, and physicians who violate the law will be subject to prison sentences and fines up to $10,000.
"If Wisconsin wanted to keep abortion illegal, it wouldn't have to act at all," says Richard Sweet, senior staff attorney for the Wisconsin Legislative Council. The statute, which predates Roe v. Wade, was never repealed even when rendered unenforceable by the 1973 Supreme Court decision legalizing abortion.
It was not until 1986 when the Legislature passed the Abortion Prevention and Family Responsibility Act, says Sweet, that Wisconsin brought its abortion law into line with the Roe v. Wade ruling.
This omnibus bill was the product of compromise between pro-choice and anti-abortion forces. In exchange for their support, anti-abortion forces fought and won the right to keep Statute 940.04 on the books. This was important, they claimed, if Roe v. Wade were ever overturned.
Is the Supreme Court on the verge of reversing its own landmark decision? On Jan. 9, the court agreed to hear an abortion case from Missouri, and there is much speculation that it will use this opportunity to review Roe v. Wade. In fact, a petition written by Solicitor General Charles Fried and Attorney General Richard Thornburgh urges the court to use the Missouri case as a vehicle to not only reconsider, but to overturn, Roe v. Wade.
Why is this law still on the books?
There were several attempts to repeal the state's anti-abortion statute after 1973, but none were successful. Part of the problem, says Dick Withers, director of public affairs for Planned Parenthood of Wisconsin, is that "individual legislators were seen as being pro-abortion if they pushed to repeal the unenforceable law."
The old statute, last amended in 1970, makes abortion a crime for both the woman and the doctor, with stiffer penalties if the fetus is determined to be an "unborn quick child." An “unborn child" is defined in the statute as "a human being from the time of conception until it is born alive." "Quick" means the fetus has moved in the womb.
In 1985, Rep. Marlin Schneider (D-Wisconsin Rapids) proposed the creation of a Legislative Council committee to draft legislation on pregnancy options. Recalls Schneider, "I wanted the committee to look at pregnancy prevention, rather than focus on the philosophical debates about abortion."
Judi Selle, then director of public affairs for Planned Parenthood of Wisconsin and one of the committee members, says the committee was borne out of "years of frustration in the Legislature." After Roe v. Wade, both pro-choice and anti-abortion legislation routinely stalled in committee. "The legislators were put through the wringer around these issues,'' says Selle.
The Special Committee on Pregnancy Options was chaired by Schneider and made up of legislators and citizens. "An effort was made to balance the group," says Cindy Ashley, executive assistant to Sen. Fred Risser (D-Madison), whose job it was to appoint the members.
Representatives from both the pro-choice and anti-abortion sides were chosen, so that the committee would produce, as Ashley puts it, "a product that had credibility."
Selle says the members shared one common goal: to "reduce the need for abortion." Toward that end, a great deal of time was spent drafting legislation that would have an impact on young people. Included were provisions regarding sex education, pregnancy prevention programs, adoption, birth control, abortion and so-called grandparent liability (requiring parents to support the offspring of their minor children).
When the bill left the Legislative Council, it contained a provision that would have removed the old abortion law from the statutes and replaced it with a codification of Roe v. Wade, says Sweet, who was the senior staff attorney assigned to the committee.
However, recalls Selle, there was "an enormous fight" over that provision when it arrived in the Assembly's Children and Human Services Committee. At the same time, two amendments, strongly supported by Wisconsin Citizens Concerned for Life, were tacked onto the bill. The first amendment would have required that minors notify their parents before obtaining an abortion and the second, in apparent violation of Roe v. Wade, would have outlawed abortion altogether.
Schneider wanted the bill to be warmly received by the Assembly once it left the committee, says Selle, so consensus among those on opposing sides of the issue was sought. Remembers Sweet, "There were all-day and evening negotiations with interest groups to iron things out."
After much heated debate, the amendments were dropped and an agreement reached, says Schneider, to maintain the old law on the books. The new law would become obsolete if Roe v. Wade were reversed. The new law removed the penalties for pregnant women who obtain abortions.
The "deal," as it came to be known, had been struck. Both pro-choice and anti-abortion forces agreed to endorse the bill and encourage legislators to support it. It passed both houses unanimously.
"There are now two conflicting laws on the state statutes," says Eunice Edgar, executive director of the American Civil Liberties Union in Wisconsin. If the Supreme Court overturns Roe v. Wade and leaves it to the states to regulate abortion, Edgar predicts a "knock-down, drag-down fight'' over the issue.
Changing of the guard
Depending on how the court rules, Dick Withers, the current director of public affairs for Planned Parenthood of Wisconsin, also foresees problems resulting from the conflicting laws. "My concern isn't so much over an out-and-out reversal of Roe vs. Wade, but in sending the discretion to regulate abortion back to the states."
Bob Bingaman, legislative director of the National Abortion Rights Action League (NARAL), a pro-choice grassroots lobbying organization in Washington, shares that concern. Bingaman thinks it unlikely that the court will overturn Roe vs. Wade, but will instead "chip away" at the decision by allowing states to impose various restrictions on their abortion laws.
Kate Michelman, executive director of NARAL, has declared that the Missouri case poses the biggest threat to abortion rights since abortion was legalized in 1973. Much of this fear stems from the dramatic change in the makeup of the Supreme Court over the past 16 years.
Of the seven justices who voted for Roe v. Wade in 1973, only three remain on the court — William Brennan, Thurgood Marshall and Harry Blackmun. Joining them in the pro-choice corner is Justice John Paul Stevens.
Both justices who dissented from the majority opinion — Byron White and William Rehnquist — still sit on the bench. Now, as chief justice, Rehnquist would decide who writes the majority opinion (if he votes with the majority) and can therefore wield substantial power over its direction and content.
Two of the remaining justices — Antonin Scalia and Anthony Kennedy — have not issued abortion opinions during their tenure. But both are conservative jurists and thought likely to vote to overturn or at least restrict Roe v. Wade. Finally, while Justice Sandra Day O'Connor has said she believes in a woman's right to an abortion, she also has voiced reservations about the '73 ruling. And her voting history has prompted the bitter joke, now circulating among pro-choice organizations, that "O'Connor has never met a restriction she didn't like.''
Tapping the energy
The court's decision to hear the Missouri case has mobilized pro-choice groups around the country. NARAL and the National Organization for Women (NOW) are filing an amicus ("friend of the court") brief, advising against tinkering with Roe v. Wade.
Beth Kaplan, a member of the Reproductive Rights Task Force of the Wisconsin Women's Network, reports a dramatic increase in the number of calls from people worried about the Missouri case. “We're looking for ways to tap the energy that we've been seeing in the last few weeks from people who want to get involved in the issue," she says.
NOW is sponsoring a rally and march in support of legal abortion and the Equal Rights Amendment on April 9 in Washington, D.C. The local chapter is chartering six buses for the 20-hour ride. There also is talk among women's groups of organizing a local march for those who can't make the trip to Washington.
The Reproductive Rights Task Force — including representatives from the Religious Coalition for Abortion Rights, NOW, Planned Parenthood and the Women's Political Caucus — has met with Sen. Risser, as well as Rep. Tom Loftus (D-Sun Prairie), to discuss the legislative implications for Wisconsin of a reversal of Roe v. Wade.
Vows Risser: "I will do whatever I can to keep the law from going backwards." But he feels there is nothing the Legislature can do before the Supreme Court hands down its ruling. "It would be a mistake to put energy into reacting in advance," he says, because that energy will be needed later to combat any adverse conditions that might follow the Supreme Court ruling.
Another concern, Risser notes, is that past efforts to repeal the 1970 law have failed.
Although the leadership in both houses is pro-choice, Risser believes there is insufficient political support for reversing the law. He cites the parental consent bill now under consideration in both the Assembly and the Senate, to illustrate his point.
This bill would require that "unemancipated" children receive permission from both parents, or from a court of law, before obtaining an abortion. Pro-choice groups claim this restriction violates the right to privacy, established in the Roe v. Wade decision, and creates a health risk for the minor because the abortion is delayed while permission is sought.
Nevertheless, 16 of the 33 senators signed on as authors of the bill. "When you have those numbers, you know you're in trouble," says Risser.
Although the parental consent bill is still in committee in both houses, Wisconsin has passed similarly restrictive abortion legislation. In 1977, the Legislature voted decisively to rescind the use of Medicaid funding for abortions, as the 1976 federal Hyde Amendment allowed. In 1985, as part of the omnibus pregnancy bill, it imposed new restrictions on abortions performed in cases where a fetus is considered capable of surviving outside the womb.
Other bills, such as a ban on abortions in public hospitals, also have been introduced in the Legislature but never made it to a floor vote. Pro-choice advocates fear that the Supreme Court will uphold some of the provisions of the Missouri law — such as a ban on public employees performing abortions. If that were to occur, the Legislature then would be free to revise Wisconsin's abortion law to reconcile it with the new decision. Sweet, the Legislative Council's attorney, says state lawmakers would have to look at both the 1970 statute and the 1985 Adolescent and Pregnancy Bill and come up with something that meets the new guidelines.
Pro-choice advocates are not content to wait and see. "We are looking into what would be the best approach to take, legislatively, to get the 1970 law repealed," says Lynne Quinto, a co-chair of the Reproductive Rights Task Force.
At least one state assembly has passed legislation in anticipation of a Supreme Court ruling on the Missouri case — but it's not the kind of law pro-choice advocates have in mind. Last month, the North Dakota Assembly voted 79-24 in favor of a bill that would, like Wisconsin's Statute 940.04, ban abortions in the state if the Supreme Court reverses Roe v. Wade. The bill awaits Senate approval.
