James Heimer
In 1989, while in graduate school at UW-Madison, I wrote a story for an in-depth reporting class that my professor suggested I submit to Isthmus. I remember very clearly the reaction from Bill Lueders, who was news editor at the time. He was doubtful that the main finding of the piece — that Wisconsin still had a criminal abortion ban on the books — was true.
His skepticism was understandable. This was already 16 years after the U.S. Supreme Court legalized abortion in its landmark 1973 ruling, Roe v. Wade. It would not have been unreasonable to expect that the Wisconsin Legislature would have repealed an unconstitutional and unenforceable law. In fact, there were many unsuccessful attempts to do just that.
This week, I pick up from where I left off in 1989, looking at the last (gulp) 29 years. We are at a familiar place. In the spring of 1989, abortion rights activists were galvanized by the Supreme Court’s decision to review a Missouri law that, among other things, stated that life begins at conception. President Trump’s nomination of Brett Kavanaugh for the high court is similarly energizing abortion rights advocates across the country. Even more so, perhaps, because it comes as midterm elections are in full swing. Here in Wisconsin, the reality of the state’s abortion ban is adding fuel to the fire. — JD
Severa Austin served as executive director of Planned Parenthood of Wisconsin from 1986 to 1996. Although the U.S. Supreme Court had declared a right to legal abortion in 1973 in Roe v. Wade, the issue never seemed settled, she says.
“You worried all the time,” Austin remembers. “There were always some people saying that Roe’s safe and we’re going to be fine. But nobody felt that was true. We all worried. And here we go again. This is the most worried that I have been. Me and thousands of others.”
The retirement of Justice Anthony Kennedy, and subsequent nomination of conservative Judge Brett Kavanaugh to the U.S. Supreme Court, has hiked fears that Roe v. Wade is in jeopardy. In Wisconsin, it has reignited concern over the state’s abortion ban, which dates to 1849 and was never removed from the books.
Wisconsin is one of 10 states with a pre-Roe abortion ban statute, according to the Guttmacher Institute, which tracks reproductive health legislation. There are also four states that have passed laws intending to ban abortion if Roe were overturned.
Advocates on both sides of the issue argue that should Roe v. Wade be reversed, Wisconsin’s law, which bans abortion other than to save the life of the mother, would likely kick in. Under the law, “any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.” Those found guilty are subject to fines up to $10,000 and prison sentences up to six years, or both.
There have been multiple unsuccessful efforts over the years to repeal the law. At the same time, anti-abortion advocates and lawmakers have been extremely effective at pushing through further restrictions to abortion access, including a 24-hour waiting period, mandatory ultrasounds, parental consent for minors, and a 20-week abortion ban.
In recent weeks, the Supreme Court vacancy has moved the abortion issue front and center in midterm elections across the country. In Wisconsin, Democrats and abortion rights advocates are sounding the alarm about the state’s criminal abortion statute as they attack Gov. Scott Walker, who is up for reelection in November.
Shortly after President Trump announced his pick for Supreme Court, the liberal group One Wisconsin Now sent an email with the subject line: “Trump, Walker will criminalize abortion.”
“If he is not blocked, Brett Kavanaugh will be the deciding vote to overturn Roe v. Wade and do what Scott Walker has been trying to do for 25 years: criminalize women having abortions.”
Analiese Eicher of One Wisconsin Now predicts the abortion issue will be at the “forefront of the conversation” in the governor’s race. One reason for that, she says, is because of how “extreme” Wisconsin’s ban is, allowing almost no exceptions.
“This is something folks are going to be asking people point blank,” she says. “It’s not something you can be wishy-washy about. Either you are for the right to choose or not.”
Heather Weininger says Wisconsin Right to Life’s founding mission was to keep the state’s abortion ban on the books.
Heather Weininger, executive director of Wisconsin Right to Life, has a different take. She predicts anti-abortion advocates will be more fired up when it comes to the U.S. Senate race, which will pit either state Sen. Leah Vukmir (R-Brookfield) or Kevin Nicholson — both endorsed by Wisconsin Right to Life — against Democratic U.S. Sen. Tammy Baldwin.
“They are looking at this like we might have one new Supreme Court justice now, but there will be more in Trump’s tenure,” she says. “The U.S. Senate is ultimately the one who is doing the confirmation.”
Pollster Charles Franklin says public opinion on abortion stays relatively stable over time, but it’s an issue that becomes more or less salient due to current events. “With the Supreme Court vacancy and nomination, we are seeing people on both sides emphasizing the potential implications of the new justice on Roe v. Wade,” he says.
And it’s an issue, he adds, that “can mobilize the base in both parties.”
One of the earliest legislative attempts to repeal Wisconsin’s abortion ban dates to the early 1970s, says Sen. Fred Risser (D-Madison), whose 62 years as a state lawmaker make him the longest serving legislator in U.S. history. Risser led a Legislative Council committee that was formed in 1972 to study and standardize criminal penalties for hundreds of laws already on the books. The work of the committee spanned three sessions. Shortly after Roe v. Wade was decided, Risser says he tried to get the panel to repeal Wisconsin’s criminal abortion statute.
“We had quite a hassle on it,” Risser recalls. “There was a member of the committee that felt very strongly that [the abortion ban] should stay in the statutes. I said it was obsolete; the Supreme Court had ruled it unconstitutional so we should get rid of it. They said a court might always change the matter and they threatened to kill the entire bill — which was a darn good bill — if we insisted on trying to eliminate that statute. So at the end of that discussion, we compromised and said since the statute was [unenforceable], we’ll leave it in in order to get the bill passed.”
There was another effort in 1985-86, part of a different Legislative Council committee, to study pregnancy prevention options (see related story, page 15). The bill that emerged from this committee did remove the criminal penalties for women who obtain abortions, but again, due to extreme opposition from abortion opponents, left the old law on the books as a compromise.
A repeal bill introduced in January 2008 made it to the Senate Committee on Health, Human Services, Insurance and Job Creation.Former committee chair, Sen. Jon Erpenbach (D-Middleton), says one reason the bill never came up for a vote was because it was not certain it would pass. Barbara Lyons, former director of Wisconsin Right to Life, celebrated the victory in a March, 27, 2008 letter to the Madison Catholic Herald, noting that 500 “valiant, committed Wisconsin right-to-lifers” had showed up to a Feb. 27 public hearing to oppose the bill. “If you believe people can’t make a difference, you are wrong,” she wrote.
The best window for repeal appeared to be in 2009 when Dems controlled both the Assembly and Senate and Jim Doyle, a strong proponent of abortion rights, was governor.
Kelda Roys, a former Democratic state representative from Madison who is running for governor, recalls that Democrats had a package of women’s health legislation that they were trying to fold into the budget. She proposed including a repeal of the abortion ban, but says caucus leadership rejected the idea. “I was told it was going to be hard enough to pass the budget as is,” she says. Also significant, there were several anti-abortion Democratic legislators at the time who would not support the repeal, including former Reps. Tony Staskunas of West Allis, Peggy Krusick of Milwaukee, and Bob Ziegelbauer of Manitowoc.
Without the votes to repeal, the focus turned to advancing bills to aid women’s health, says Rep. Chris Taylor of Madison, who was then the public policy director for Planned Parenthood of Wisconsin. This included a requirement that sex education programs offer a comprehensive curriculum and another requiring that insurance plans that cover prescription drugs also cover birth control.
“Are we going to spend all this time trying to get this criminal abortion ban off the books or are we going to try to spend some time getting proactive policies put in place,” says Taylor, describing the thinking at the time.
Weininger confirms that keeping the abortion ban on the books has always been a top priority for Wisconsin Right to Life. The organization, in fact, was formed precisely for that reason — five years before Roe.
“There was a priest at the time who saw the writing on the wall and became concerned about what would happen” if abortion were legalized, says Weininger. “A group came together and not just Catholic folks — a broad group of people from different faiths and backgrounds.”
Grothman: “I think the Democratic candidate for governor would be making a mistake to make legalized abortion an issue.”
U.S. Rep. Glenn Grothman (R-Glenbeulah), who is staunchly anti-abortion, served more than two decades in the state Legislature before being elected to Congress in 2015. He says there just wasn’t enough support for repeal in all those years, given the presence of pro-life Democrats and “always some people who don’t want to take a vote.” Also, the Republican Party, which Grothman calls “the pro-life party,” was almost always in a position to turn back a repeal effort, he says. “I felt like we always had a pro-life majority in one house or the other. I was in the state Legislature for 21 years and there were only two years in which the Republican Party didn’t have one house or the other.”
While moves to repeal the ban failed, efforts to further restrict abortion access were fruitful.
Anti-abortion groups in Wisconsin and across the country were greatly aided in their efforts to chip away at access by the 1992 U.S. Supreme Court ruling Planned Parenthood of Southeastern Pennsylvania v. Casey, says Alta Charo, professor of law and bioethics at UW-Madison.
“The Court adopted a new standard of ‘undue burden’ that never existed before,” she says. “[The woman] has a right to control her body and her reproduction, but the state has an interest in fetuses, so it can do things to express its interest until it becomes an ‘undue burden.’”
This paved the way, she says, for such things as Wisconsin’s hospital admitting privilege requirement, which was later invalidated by a federal judge, as well as the state’s parental consent law, abortion waiting period and consent requirements.
Austin, who was there for the early days of these restrictive bills, says, “As I recall we were always on the defensive. We were doing what we could to make sure people understood the consequences of any modification to the availability of abortion services to women. What it would really mean to your sister, your friend.”
Roys thinks these consequences are becoming more real to women. A former executive director of NARAL Pro-Choice Wisconsin, she argues her work as an advocate and state lawmaker will win her points at the ballot box.
“The one thing Madison people say is, ‘Kelda, she carried the banner on reproductive rights, won’t that hurt her?’ No, that’s how [I] will win, especially when people see the very real threats to Roe v. Wade.”
“Wisconsin is a pro-choice state,” adds Roys, who has pledged, if elected governor, to pardon any provider charged under the ban. “And people all over the state understand what a personal, private decision it is to have an abortion, to start a family. Nothing is a more personal, consequential decision.”
Roys says her support of reproductive rights will even help her make inroads into deep red country. “Walker can’t win if he loses the suburban, married women in Washington, Ozaukee, Waukesha counties. He can’t win. This cohort of voters is already fed up with the GOP, appalled by Trump, concerned by gun violence. They definitely don’t want to go back to a time when abortion was illegal.”
Eicher: “This is something folks are going to be asking people point blank. Either you are for the right to choose or not.”
Eicher, of One Wisconsin Now, thinks Roys might have a point.
“This is an issue that is really real for a lot of women voters, particularly for women who might not have voted before. Women my age, who haven’t had to fight like our moms and our grandmothers,” says Eicher, who is 30 and a Dane County Board supervisor. “They have tended to think of it as a done deal — [Abortion] can’t go away. Now they’re realizing this is under attack.”
Eicher says that the issue could hurt Walker. “This is something Scott Walker in the past has pretended to be a moderate on.”
She is referring to a 2014 television ad Walker ran when facing challenger Mary Burke. Staring straight into the camera, Walker introduced himself as “pro-life,” but also said that he supported legislation that “leaves the final decision to a woman and her doctor.” That claim of support contradicts Walker’s record, as confirmed in 2010 by Politifact and Walker himself, which is that Walker supports banning abortion, even in cases of incest and rape.
Walker’s campaign manager did not respond to a request for comment.
Grothman says there is no doubt about Walker’s pro-life views, or that they will win the governor votes in Wisconsin, “a pro-life state.”
“I think pro-life is always an important issue to people in this state,” he says. “And I believe with the almost universal use of ultrasounds, more people have become pro-life over time.”
Adds Grothman: “I think the Democratic candidate for governor would be making a mistake to make legalized abortion an issue.”
Mike Wagner, a journalism professor at UW-Madison, might not go so far as to call it a mistake. But he does question whether ringing “a five-alarm bell about Roe v. Wade” is the Dems’ “best strategy.”
“Right now I think they have an opportunity to appeal to a lot more voters by making a general statement about the current state of our democracy. We’ve seen teachers in red states go on strike; we’ve seen people mobilize around women’s rights in general, around voters’ rights in general, around workers’ rights and human rights. Wrapping [abortion rights] into that is probably more likely to be successful than just hanging their hopes and prayers on activating voters on this single issue.”
On the other hand, adds Wagner, if Roe gets overturned “it would light a fire under slightly more than half of the electorate.”
Franklin, who has been director of the Marquette Law School poll since it began in 2012, says that public opinion on the issue of legal abortion has not changed in recent years. “The results are very consistent, wave after wave.”
In the most recent Marquette poll, released July 18, 63 percent of Wisconsin voters say abortion should be legal in all or most cases and 29 percent say abortion should be illegal in all or most cases.
National polling has also been fairly consistent on the question. The Gallup poll that came out on July 12 found 64 percent in favor of keeping Roe; 28 percent in favor of overturning the decision.
On July 12, Franklin tweeted a link to both the Gallup poll and Pew Research Center polling, from 1995-2017.
Paulius Musteikis
Sen. Fred Risser has tried for decades to repeal Wisconsin’s abortion ban.
“Support for legal abortion remains as high as it has been in two decades of polling,” Pew concluded. In 2017, 57 percent said that abortion should be legal in all or most cases, while 40 percent say it should be illegal in all or most cases.
In a Quinnipiac poll released in early July, 63 percent of voters polled agreed with the Roe v. Wade decision and 31 percent disagreed.
When the 2017 Pew poll broke down the results by gender, researchers concluded there was no gender gap on the issue: “Men and women express similar views on abortion.” Fifty-nine percent of women say it should be legal in all or most cases; so do 55 percent of men.
But in an unorthodox poll, public opinion researchers at PerryUndem, a nonpartisan firm in Washington, D.C., argue that existing polling data is “one-dimensional” and “irrelevant to most policy discussions;” they also say it leads to the false conclusion that voters are hopelessly divided on the issue of abortion.
“45 years after Roe v. Wade: What we don’t know about public opinion on abortion...because we’ve never asked,” is the title of their poll, released in January 2018.
The researchers first conducted six focus groups “across a spectrum of voters,” including in Wisconsin. They then crafted a survey with new questions to assess “opinion grounded in real-life and in the ways people experience the issue and how we heard voters talk about the issue.” The survey of 1,029 people was conducted in December 2017.
The poll found 72 percent opposed to overturning Roe and 26 percent in favor. And they found gender differences when asking nuanced questions about parenthood and pregnancy. For instance, 63 percent of women, 18 to 44 years of age, reported a time in their life when they were grateful that legal abortion was an option; only 36 percent of men reported similar feelings. Also, 67 percent of women 18 to 44, experienced “dread or panic” at some point when they thought they were pregnant; 40 percent of sexually active men of the same age experienced similar feelings.
Some of the most interesting findings emerged when researchers drilled down on the beliefs of the 26 percent of voters opposed to abortion. They found these voters are “more comfortable with traditional gender roles in society,” are “more likely to disagree the country would be better off with more women in political office” and “are less likely to want women choosing which type of procedure or care is used for abortion.”
Those findings might help explain why abortion restrictions that have a disproportionate impact on women are tolerated. It’s something that Charo, the UW ethicist, has a theory about, though it’s a personal one.
“My instinct is that there is still a deep-seated belief — even among people who don’t recognize it among themselves — that there is naturally a difference between men and women that should send them off in somewhat different paths, and should result in somewhat different degrees in personal autonomy,” she says. “And that’s why it’s easier to justify some of these laws that have a discriminatory impact on women.”
