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The Midterms Will Determine If Wisconsin’s Abortion Laws Stay In The 1800s

The legal status of abortion in Wisconsin depends on who is elected governor and attorney general in November.


Transcript

Amelia Thomson-DeVeaux: After the Supreme Court overturned Roe v. Wade in June, Wisconsin’s laws went back to the nineteenth century – literally. The state has an abortion ban that was passed in 1849 and updated several times over the years, until the decision in Roe v. Wade made it basically unenforceable. Because it was never taken off the books, that pre-Civil War ban now makes it illegal to have an abortion in Wisconsin in almost every circumstance. Now, the long-term fate of Wisconsin’s abortion ban could hinge on who is elected governor and attorney general in November.

Shortly after Roe was overturned, Wisconsin’s Democratic governor, Tony Evers, and attorney general Josh Kaul both said that they would do what they can to ensure that doctors face few consequences for performing abortions.

Evers: “I will provide clemency to any physician that is charged under that law.”

Kaul: “It does not serve the health or the safety of Wisconsinites to enforce a 19th-century abortion ban and we are not going to do it at the Wisconsin Department of Justice.”

Amelia Thomson-DeVeaux: Evers and Kaul also went after the ban another way. They filed a lawsuit arguing that newer Wisconsin laws supersede the 173-year-old piece of legislation, like a 1985 law banning abortion only after fetal viability. And the Democrats say that these newer laws should take precedence.

Evers and Kaul are both up for reelection. And winning another term isn’t a sure thing for either of them. When Kaul was first elected in 2018 – the year of the “blue wave” – he won by less than a percentage point. Evers is slightly favored to win over his opponent, Tim Michels, according to the FiveThirtyEight forecast. And Michels, the Republican, has said he supports the 1849 abortion ban.

Michels: “The law is the law – of course I will enforce the law. I am pro-life too. It comes from my faith.”

Amelia Thomson-DeVeaux: Having a Republican governor wouldn’t just mean the 1849 law would be on firmer footing. If Republicans manage to flip the governor’s mansion, they could pass new restrictions and bans without the current threat of the governor’s veto. And that’s a definite possibility. Republicans will almost certainly maintain control of the Wisconsin state legislature in the midterms, and there’s already talk of passing new laws that reinforce the abortion ban.

But having the future of abortion access in the state hanging over the election isn’t necessarily helpful to Republicans. According to a Marquette University Law School poll1 conducted in August, a solid majority of Wisconsin voters disapprove of the Supreme Court’s decision to overturn Roe v. Wade. Similarly, a majority of Wisconsin voters think abortion should be legal in all or most cases – and only 5 percent think it should always be illegal.

On the other hand, abortion isn’t the only issue on voters’ minds. That same Marquette poll found that greater shares of voters said they were very concerned about inflation, gun violence and crime than abortion policy. So the outcome of Wisconsin’s elections won’t just tell us how the voters feel about the candidates – it could also tell us how important the issue of abortion is to their vote.

Footnotes

  1. Charts showing support for Roe v. Wade, whether abortion should be legal or illegal and issues of concern for Wisconsin voters come from a Marquette University Law School poll conducted Aug. 10-15, 2022, of 1,003 registered voters in the state.

Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

Sophia Lebowitz is a video producer at FiveThirtyEight.

Anna Rothschild is FiveThirtyEight’s senior producer for video.

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