Abortion in Wisconsin

Abortion in Wisconsin has been legal since September 18, 2023, before which its legal status had been unclear since the overturn of Roe v Wade^{[citation needed]}, and is performed in Madison, Milwaukee and Sheboygan through 22 weeks gestation.^[1] However, elective abortions in Wisconsin are under dispute after the overturning of Roe v. Wade by the Supreme Court of the United States on June 24, 2022. Abortion opponents cite an 1849 law that they claim bans the procedure in all cases except when the life of the mother is in danger.^[2] However, lower level courts have argued that the law only applies to infanticide and not consensual abortions.^[3] The enforceability of the law is disputed and being considered by the state courts. Planned Parenthood of Wisconsin announced that they would resume abortion services in Madison and Milwaukee on September 18, 2023.^[4][5][6] Planned Parenthood of Wisconsin later announced that they would resume abortion services in Sheboygan on December 28, 2023.^[7]

A 53% of Wisconsin adults said in a poll in 2014 by the Pew Research Center that abortion should be legal in all or most cases with 45% saying it should be illegal in all or most cases. The 2023 American Values Atlas reported that, in their most recent survey, 66% of Wisconsinites said that abortion should be legal in all or most cases.^[8] The Center for Reproductive Rights labels the state as hostile towards abortion rights, e.g. 20-week ban, telemedicine ban, TRAP requirements, admitting privileges requirement, transfer agreement requirement, reporting requirement, parental consent required, mandatory counseling, mandatory ultrasound, and waiting period requirements.^[9]

In 1849, the state legislature passed a law that criminalized abortion, making it a felony for a doctor to perform an abortion on a woman, no matter the circumstances of her pregnancy including pregnancy as a result of rape or incest, unless the pregnancy endangers the life of the mother:^[10][11]

Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be hereby produced, be deemed guilty of manslaughter in the second degree.^[11]

In the 19th century, bans by state legislatures on abortion were about protecting the life of the mother given the number of deaths caused by abortions; state governments saw themselves as looking out for the lives of their citizens.^[12]

By 1950, the state legislature would pass a law stating that a woman who had an abortion or actively sought to have an abortion, regardless of whether she went through with it, was guilty of a criminal offense.^[12]

Wisconsin Stat. § 940.15, enacted in 1985, made abortion a crime only after viability, and allowed abortion after viability “if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman’s attending physician.”^[13]

The state was one of 23 states in 2007 to have a detailed abortion-specific informed consent requirement.^[14] Georgia and Wisconsin were 2 of the only 22 states with written informed consent materials referring women to  "crisis pregnancy centers" which acknowledged these centers did not support or provide women with abortion related services.^[15]

As of 2013, state Targeted Regulation of Abortion Providers (TRAP) law applied to medication induced abortions in addition to abortion clinics.^[16]

Following the passage of a 2013 Wisconsin law requiring abortion providers to have admitting privileges at a nearby hospital, three Catholic hospital systems in the state intended to deny admitting privileges to abortion providers. Wisconsin's attorney general said this intent violated the Church Amendment of 1973, which prohibits hospitals receiving federal funds from discriminating against a doctor on the basis of whether or not the doctor provides abortions or sterilizations.^[17]

Five bills sought to outlaw abortion in Wisconsin in 2019.^[10] As of mid-May 2019, state law banned abortion after week 22.^[18] In 2019, Governor Tony Evers vetoed four Republican passed bills that would have limited abortion access.^[19] Specifically, the legislature passed a measure requiring abortion physicians to provide information on abortion reversal, a procedure that the scientific community sees as illegitimate and invalid,^[a] as it is not based upon medically sound research.^[21][22] In addition, the legislature passed a bill that would eliminate all government funding for Planned Parenthood, as well as a ban on all abortions based upon the race, sex, or genetic anomaly of the fetus.^[23] Evers also vetoed a bill that would sentence doctors to life in prison for failing to provide infants with medical care if they are born alive during a botched abortion attempt.^[10] As of 2019, the state had a legal 24-hour waiting period before a woman could get an abortion.^[10]

In March 1970, Myron L. Gordon, a U.S. district judge in the Eastern District of Wisconsin, granted a declaratory judgment, stating that Wisconsin's contemporary abortion law was unconstitutionally vague. However, this did not prohibit prosecutors from charging the plaintiff using different laws, or from enforcing the same law against different defendants. The defendant in the March case was subsequently recharged for violating Wisconsin's law against abortion. After that prosecution was also challenged in federal court, in November 1970, a three-judge panel granted an injunction forbidding the prosecution of any person under Wisconsin's law against abortion, thus effectively making abortion legal in Wisconsin.^[24] The annotations in Wisconsin's abortion statute list the March 1970 declaratory judgement as the point where Wisconsin's abortion ban was overturned,^[25] despite prosecutions and indictments for abortion continuing until the November 1970 injunction against enforcement.^[24] The U.S. Supreme Court's 1973 decision in the case of Roe v. Wade affirmed the ban issued by U.S. district judge Myron Gordon.

After the passage of 2013 Wisconsin Act 37, which would have required all Wisconsin abortion providers to have hospital admitting privileges,^[26] the law was almost immediately enjoined by U.S. district judge William M. Conley, in response to a lawsuit by Planned Parenthood of Wisconsin.^[27] The law would have immediately required physicians providing abortion to obtain the right to admit patients at local hospitals—although federal law dictates that no hospital can deny a patient admittance. Wisconsin already had a transfer agreement requirement established, which mandates that all facilities where abortion is performed to have an agreement with a local hospital for the transfer of patients. Most in public health and clinical practice understand admitting privilege requirements—adopted by nine states, including Wisconsin—to be nonessential, and not grounded in evidence-based practice.^[28][29] Further, as argued during the court proceedings, the law would have led to diminished access to abortion within the state. After trial, the district judge, Conley, struck down the admitting privilege requirement.

The case, known as Planned Parenthood of Wisconsin v. Schimel, was appealed to the 7th Circuit U.S. Court of Appeals by Wisconsin's then-attorney general, Brad Schimel. In November 2015, the 7th Circuit upheld the U.S. district court ruling. The state's primary argument in defense of the admitting privileges requirement centered on women's health. Specifically, if complications arose, the requirement presumed a continuity of care for the patient.^[30] The court's ruling, however, determined that the remarkably low rates of complications associated with abortion, and the state's failure to impose similar requirements on physicians providing riskier procedures rendered these claims moot.^[31]

Following the 7th Circuit's ruling, Schimel petitioned the U.S. Supreme Court for review of the case; the Supreme Court chose not to hear the case, leaving the Appeals Court's ruling in place.^[32][33]

The legal situation was radically changed, however, in 2022, when the U.S. Supreme Court overturned their 1973 Roe v. Wade decision with their decision in Dobbs v. Jackson Women's Health Organization, No. 19-1392, 597 U.S. 215 (2022).^[34][35] After the Dobbs decision, Wisconsin abortion providers immediately ceased elective abortions, fearing prosecution under the 1849 Wisconsin law which apparently banned abortion in all cases except to save the life of the mother.^[36] Josh Kaul—who had replaced Brad Schimel as Attorney General of Wisconsin—filed a lawsuit disputing the enforceability of the old law, arguing more recent changes to abortion law effectively repealed it.^[37] In 2023, a Dane County Wisconsin circuit court judge ruled that the 1849 law does not ban consensual abortions, but only prohibits foeticide.^[38]

Between 1982 and 1992, the number of abortion clinics in the state declined by 13, going from 29 in 1982 to 16 in 1992.^[39] In 2013, Affiliated Medical Services was located in Milwaukee at 1428 N. Farwell Ave. Women going to the clinic often had to be accompanied as there were protesters outside.^[40] In 2014, there were 4 abortion clinics in the state.^[41] In 2014, 96% of the counties in the state did not have an abortion clinic. That year, 67% of women in the state aged 15–44 lived in a county without an abortion clinic.^[42] In March 2016, there were 22 Planned Parenthood clinics in the state.^[43] In 2017, there were 21 Planned Parenthood clinics, of which 2 offered abortion services, in a state with a population of 1,270,774 women aged 15–49.^[44]

In the period between 1972 and 1974, there were zero recorded illegal abortion deaths in the state.^[45] In 1990, there were 577,000 women in the state at risk of an unintended pregnancy.^[39] In 2001, Arizona, Florida, Iowa, Louisiana, Massachusetts, and Wisconsin did not provide any residence related data regarding abortions performed in the state to the Centers for Disease Control.^[46] In 2013, among white women aged 15–19, there were 570 abortions, 200 abortions for black women aged 15–19, 90 abortions for Hispanic women aged 15–19, and 80 abortions for women of all other races.^[47] In 2014, 53% of adults said in a poll by the Pew Research Center that abortion should be legal in all or most cases with 45% stating it should be legal in all or most cases.^[48] In 2017, the state had an infant mortality rate of 6.4 deaths per 1,000 live births.^[49]

Wisconsin Alliance for Reproductive Health is an organization that supports abortion rights.^[10] In May 2019, they were active in trying to overturn Wisconsin's 1849 era abortion ban.^[10]

Wisconsin Alliance for Reproductive Health Executive Director Sara Finger said, "Wisconsin is not recognized as having some of the harshest abortion laws, but we're right up there with Texas and some others who do have that reputation."^[10]

On January 27, 2013, Planned Parenthood of Wisconsin marked the 40th anniversary of Roe v. Wade with an event titled "Our Lives. Our Stories. Our Celebration" at the Majestic Theater in Madison.^[40]

Women from the state participated in marches supporting abortion rights as part of a #StoptheBans movement in May 2019.^[54]

Following the overturn of Roe v. Wade on June 24, 2022, in Wisconsin thousands of protesters gathered and marched in Madison,^[55] Milwaukee,^[56] Appleton,^[57] Eau Claire,^[58] Kenosha,^[59] Wausau, Marshfield, Stevens Point,^[60] Sheboygan,^[61] La Crosse^[62] and Green Bay.^[63]

In Madison, Wisconsin on January 22, 2023, more than 1,000 abortion rights protesters rallied at the state capitol building for the Women's March main event marking the 50th anniversary of the Roe v. Wade decision.^[64]

In Madison, Wisconsin on January 27, 2024, an abortion rights protest was held outside the state capitol building following Republican efforts to pass a bill on a 14-week abortion ban referendum.^[65]

In Milwaukee, Wisconsin on July 15, 2024, over 3,000 people protested Trump and Republican policies outside the Republican National Convention.^[66]

On May 8, 2022, a crisis pregnancy center in Madison, Wisconsin was firebombed. The attack was claimed by Jane's Revenge, a militant pro-abortion rights group.^[67] In a statement issued after the attack, the group demanded the disbanding of anti-abortion organizations, with a threat of "increasingly extreme attacks",^[68] including a "Night of Rage" should Roe v. Wade be overturned by the Supreme Court.^[69][70]

Much of the anti-abortion movement in the United States and around the world finds support in the Roman Catholic Church, the Christian right, the Lutheran Church–Missouri Synod and the Wisconsin Evangelical Lutheran Synod, the Church of England, the Anglican Church in North America, the Eastern Orthodox Church, and the Church of Jesus Christ of Latter-day Saints (LDS).^{[71][72][73][74]}

Specifically, organizations such as Pro-Life Wisconsin, Wisconsin Right to Life, and the Wisconsin Catholic Conference are actively working to limit or restrict access to abortion access within the state of Wisconsin.^[75][76][77] They all engage in outreach and education campaigns directed towards the general public, fundraising activities, and resources to churches and Pastors for use in their own ministry.^[78][79] Further, each organization engages in policy and legal efforts to limit access to abortion, whether it is through testimonials before the state legislature on bills related to abortion, or assistance in court cases that challenge existing abortion restrictions.^[80][81][82]

On April 1, 2012, a bomb exploded on the windowsill of a Planned Parenthood clinic in Grand Chute, Wisconsin, resulting in a fire that caused minimal damage.^[83]