A POST-ROE WISCONSIN
By Matt Sande, Pro-Life Wisconsin Legislative Director
The United States Supreme Court is on the precipice of overturning its most egregious ruling: Roe v. Wade. After 49 years and over sixty million slain, it is far past time Roe be tossed upon the ash heap of history. I am of course referring to the Dobbs v. Jackson Women’s Health Organization pending the United States Supreme Court decision. The high court is considering Mississippi’s abortion ban, which prohibits abortion after 15 weeks’ gestation. Regrettably, the Mississippi law provides an exception for medical emergencies and severe fetal abnormalities. Nevertheless, the Supreme Court will answer the question: “Are all pre-viability abortion bans unconstitutional?” Fetal viability is generally accepted as around 24 weeks gestation.
With Dobbs, it is a strong possibility that the Supreme Court could overturn Roe v. Wade and Planned Parenthood v. Casey and remand the abortion issue back to the states. Abortion would no longer be a constitutional “right” but an issue to be democratically addressed by state legislatures and congress, as Justice Kavanaugh suggested in oral arguments last December.
Concerning Roe, we know the so-called “right to privacy” is a court-ordered “right,” not a constitutional right, and that with it our high court forced abortion on demand down our nation’s throat. But more fundamentally, the court denied the protection of personhood to those most in need of it – our tiny preborn brothers and sisters. To be sure, the central premise of Roe is that the unborn child is NOT a person within the meaning of the law.
If the Supreme Court overturns Roe and Casey and sends the abortion issue back to the states, it is critical that we be prepared to protect every preborn child in Wisconsin from the moment of conception. This will require two, and possibly three, state legislative actions:
1) In Wisconsin, it is likely that if Roe fell, our pre-Roe criminal abortion statute (Section 940.04, Wisconsin Statutes) would come out of dormancy. However, there are serious concerns regarding its effectiveness in banning abortion.
Legal minds on both sides of the abortion issue have questioned whether section 940.04 would operate as an abortion ban because the Wisconsin Supreme Court, in State of Wisconsin v. Glenndale Black, construed it as a feticide statute. This 1994 case involved a loathsome defendant who had punched his wife in the abdomen five days before her due date killing her baby.
Also, section 940.04 contains a massive loophole – a broad and undefined life-of-the-mother exception – through which to drive abortion on demand. Pro-Life Wisconsin will work hard to close this loophole and pass a total protection statutory abortion ban, and we will need a pro-life governor to sign it.
2) Section 940.04 does not explicitly criminalize any medicine, drug, or chemical substance used in an abortion. It only mentions “intentionally destroying the life of an unborn child, or unborn quick child.” The antiquated word “quick” means 16-18 week’s gestation, or when the child begins to move in utero. It is unclear if section 940.04 would ban so-called “medical” abortions or mifepristone/RU-486 abortions. What we call post-implantation chemical abortions. We may have to pass state legislation specifically outlawing medical abortions. If so, Pro-Life Wisconsin will work to pass this, and again, we will need a pro-life governor to sign it.
And at the federal level, we must work to obstruct the mailing of mifepristone from out-of-state to Wisconsin women – undetected and unsupervised – despite current Wisconsin law requiring a prescribing physician to perform a physical exam of the woman and to be physically present in the room when this abortion-inducing drug is given. And even if we outright ban mifepristone abortions in Wisconsin post-Roe, abortion centers in states where abortion remains legal could mail these abortion pills to Wisconsin women undetected. Congressman Mike Gallagher has shown strong interest in finding a federal solution to this deadly, intractable problem.
3) And whether Roe is upheld or overturned, we must amend our state constitution to protect our pro-life laws now and in the future. Pro-Life Wisconsin has and will continue to work hard to pass the Wisconsin Personhood Amendment, legislation that extends the inalienable right to life already found in the Wisconsin Constitution to all preborn children from the beginning of their lives. Why is this so necessary?
Both the Kansas and Iowa supreme courts recently ruled that the liberty right in their respective state constitutions includes a substantive due process right to abortion, severely jeopardizing their states’ abortion regulations. Abortion is now a fundamental right in Kansas and Iowa. Both states are now quickly moving to amend their state constitutions to save their pro-life statutes.
It is truly shameful that the modern judicial leaders of Kansas and Iowa found a right to kill innocent human beings in the precious, inalienable right of liberty enshrined in the preambles to their constitutions by their states’ founders. They did so by utterly ignoring the existence of preborn children growing inside their mothers’ wombs; by depersonalizing them. If the Wisconsin Supreme Court loses its tenuous conservative majority in 2023, we can be assured that a new liberal majority will move quickly to find a right to abortion in the Wisconsin Constitution. And they would have an easier time doing so. How so?
From a pro-life perspective, the Wisconsin Constitution contains a glaring error at its outset. In specifying the beneficiaries of its human rights enumerated in Section 1 of the Declaration of Rights, our state constitution leaves out the preborn. It applies the rights of “life, liberty, and the pursuit of happiness” to only those people who are “born.” An activist Wisconsin Supreme Court most assuredly would use the word “born” in our current state constitution to deny the right to life of the preborn by interpreting an independent right to abortion in that document. In so doing, the Court would nullify any present or future pro-life laws in our state, including s.940.04. We must not wait for this to happen like in Kansas and Iowa. Rather, we must shield Wisconsin from a similar fate by moving swiftly to amend our state constitution. Only by enshrining the right to life in our state’s highest law will Wisconsin’s preborn children be afforded full and lasting legal protection.
The Wisconsin Personhood Amendment, 2019 Assembly Joint Resolution 130, authored by Representative Joe Sanfelippo and co-authored by Senator Andre Jacque, simply removes the word “born” from the Declaration of Rights in Section 1, and then adds a simple personhood definition, which is as follows: As applied to the right to life, the term “persons” shall apply to every human being at any stage of development, born or unborn.
Again, regardless of whether Roe is overturned, if the Wisconsin Constitution is not amended and a future Wisconsin Supreme Court finds a right to abortion in that document, s.940.04 and all our pro-life laws will be imperiled. That must not happen. An amendment to the Wisconsin Constitution requires passage in two successive legislatures followed by a simple majority vote of the people. The governor’s signature is not required, although his or her public support would be critical.
We also need to prepare socially – meaning on the ground in our local communities – if abortion is banned in a post-Roe Wisconsin. The demand for pre-natal and post-natal care will be high, and we need to meet that demand by supporting and growing Wisconsin’s statewide network of pregnancy resource centers (PRCs) and even expanding their role to include the full range of medical care for pregnant women.
Pro-Life Wisconsin partnered with Wisconsin Family Council to create the non-profit “Choose Life Wisconsin, Inc.” in 2014. We then helped pass legislation in 2015 allowing us to design and apply for a “Choose Life” specialty license plate that, since its approval in 2017, has opened a robust funding stream for Wisconsin’s PRCs, which offer free pregnancy and STD testing, free ultrasounds, pregnancy counseling, adoption support, and in general help women in crisis pregnancies make life-saving choices. We have over 2,000 “Choose Life” plates on the road and have distributed over $150,000 in grants to PRCs across the state.
But the “Choose Life” plates will not be nearly enough. Pro-life conservatives in government, business, and our churches will need to get out of their comfort zones and rethink things like paid family leave and direct, large-scale public and private funding of PRCs. If Roe is overturned and legal abortion ends in Wisconsin, we pro-lifers need to put our money where our mouths are and fully support, like never before, women in unplanned pregnancies with material, financial, emotional, and spiritual support. We must be ready for this moment, for it may be just around the corner.