Wisconsin Democratic Lawmakers Call For Repealing Wisconsin’s 1849 Abortion Ban

Baylor Spears, Wisconsin Examiner

Gov. Tony Evers and Democratic lawmakers announced a bill Tuesday that would repeal Wisconsin’s 1849 abortion ban to effectively “restore Roe” in the state.

The action comes two weeks before Wisconsin’s consequential Supreme Court Election. It follows Republicans’ announcement of a bill last week that would add rape and incest exceptions during the first trimester of pregnancy to the current abortion ban and clarify Wisconsin’s current “life of the mother” exception. Evers immediately rejected the GOP bill last week and recommitted to vetoing it, if necessary.

“I’ve been clear from the beginning that I won’t sign a bill that leaves Wisconsin women with fewer rights and freedoms than they had before the U.S. Supreme Court overturned Roe,” Evers said at the Tuesday press conference. “Simply put, the Republicans’ bill doesn’t cut it.”

The Republican bill was also rejected by the Republican Senate Majority Leader Devin LeMahieu (R-Oostburg), saying further discussion wasn’t necessary and it wouldn’t be considered on the floor of the Senate.

Democrats’ bill would repeal the 1849 law, which holds that any person — except the mother — who intentionally destroys the life of an unborn child could be found guilty of a felony. The law’s only exception is when a “therapeutic abortion” is performed by a physician to “save the life of the mother.”

The bill would leave in place other abortion regulations in Wisconsin, many of which were passed following the 1973 Roe v. Wade decision. Experts say these laws — which include policies like requirements that physicians rather than nurses or midwives perform abortions, parental consent requirements for minors, the requirement that patients receive state-mandated information and a ban on abortions after 20 weeks — have limited access to abortion in Wisconsin for years.

“We’re not talking about fringe ideas here. What this bill will do is simple. It’ll restore access to safe, legal abortion in Wisconsin to what it was on June 23, 2022—nothing more, and nothing less,” Evers continued.

Evers and Democrats first called for the repeal of the 1849 ban in June 2022 right before the announcement of the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision. Republicans gaveled in and gaveled out of the special session Evers called to consider the repeal without any discussion.

The resurrected bill — co-authored by Sen. Kelda Roys (D-Madison) and Rep. Lisa Subeck (D-Madison) — is unlikely to gain any traction in the Republican-controlled Legislature this time around.

“Women—not politicians—are the only ones who should make decisions about their bodies, lives, and health,” Roys said. “Abortion is common, safe, and not controversial. Wisconsinites overwhelmingly want to see the rights we had under Roe v. Wade restored.”

A majority of Wisconsinites support broader access to abortion, according to polls conducted by Marquette University Law School. In a November poll, 55% of people said they opposed the Supreme Court’s decision to overturn Roe v. Wade, and 84% of people said Wisconsin should allow a woman to obtain a legal abortion who becomes pregnant as the result of rape or incest.

“As long as doctors face the threat of prosecution for providing basic reproductive healthcare, and as long as extremist Republicans continue putting politics ahead of our rights, patients will not have access to the abortion care they need in our state,” Subeck said.

In introducing the bill, Democrats are continuing to keep abortion in the spotlight, especially ahead of the April 4 election, which has increasingly become a referendum on abortion in the state. Republicans blocked an attempt by Democrats in January to put an advisory referendum on the April ballot asking voters whether Wisconsin should repeal the state’s criminal abortion ban.

The state Supreme Court election — with conservative former Justice Dan Kelly facing liberal Judge Janet Protaciewitcz — could have massive impacts on future shape of abortion law in Wisconsin, especially with a case filed by Attorney General Josh Kaul moving through the judicial system that asks for clarity on state abortion law by declaring the 1849 ban unenforceable due to its conflict with statutes enacted after it. Evers backs the lawsuit.

Lawmakers said at the press conference that it was imperative that clarity come sooner rather than later.  “We can’t just sit and wait for the courts to act,” Subeck said. “We need clarity now.”

Evers said that the motivation behind the bill was to push for real debate on the issue.

“We have a bill,” Evers said. “Let’s have a debate. The Republicans have their bill. The Democrats have their bill. People of Wisconsin should be able to hear a debate about this issue, not silence.”

Assembly Speaker Robin Vos (R-Rochester) criticized Democrats’ call for debate on Tuesday, saying Democrats are unwilling to compromise on the issue.

“The Democrats’ news conference was quite the spectacle, with Governor Evers’ hypocrisy on full display. Last week, Legislative Republicans introduced a bill that’s a reasonable middle ground to the divisive and opposing viewpoints on abortion,” Vos said in a statement. “Evers immediately said he would veto it.”

“Legislative Republicans have continued to say we’re willing to discuss and find consensus,” Vos continued. “Instead, Gov. Evers issues an ultimatum of no negotiating.”

Wisconsin Examiner is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Wisconsin Examiner maintains editorial independence. Contact Editor Ruth Conniff for questions: info@wisconsinexaminer.com. Follow Wisconsin Examiner on Facebook and Twitter.

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