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A key Republican lawmaker in the Wisconsin state legislature indicated over the weekend that his party would seek to restrict abortion access if the state Supreme Court upholds a lower court’s opinion blocking an 1849 statute.
The statute in question, which forbids abortion in all circumstances except to save a pregnant person’s life, had been blocked from being enforced since 1973, when abortion rights were recognized and protected by the federal Supreme Court. But in 2022, when the court upended those protections, several states reverted to their old statutes that were still on the books — including Wisconsin.
In late 2023, however, a state circuit court found that the 1849 statute was in violation of constitutional protections and blocked its enforcement, reverting back to the standard that existed before 2022 that allowed abortions in the state up to 20 weeks of pregnancy. The state Supreme Court heard a challenge to that ruling in November, and is expected to rule on the issue sometime in the next few months.
With the court consisting of a 4-3 liberal bloc majority, it’s likely that the lower court’s injunction will be upheld. If that happens, Republicans will consider passing stronger abortion restrictions, state Senate Majority Leader Devin LeMahieu said in an interview on Sunday.
“It could be a 14 week [ban] if they [the state Supreme Court] make abortion legal full term or if they keep it at 20 weeks, we could try to do 14 weeks,” LeMahieu said. “At that point, we’ll try to build consensus and see where our caucus is at.”
Democratic senators decried LeMahieu’s proposal, pointing out that most Wisconsinites are interested in preserving and protecting abortion rights, not eroding them further.
“The insinuation that the legislature should take up a new abortion ban should the 1849 law be struck down is remarkably out of touch with the priorities and needs of the people and families across our state,” Democratic state Sens. Jodi Habush Sinykin, Sarah Keyeski and Jamie Wall said in a joint statement.
Indeed, polling in the state shows that most residents are opposed to further restrictions. A Marquette Law School poll published in October, for example, found that 63 percent of voters in Wisconsin want abortion to be legal in all or most cases. Only 31 percent wanted the procedure to be restricted in most cases, while just 6 percent said it should be illegal in all cases — like the 1849 statute would enforce.
Abortion rights will likely become a focal point in an upcoming statewide election. In April, Wisconsin residents will vote in a state Supreme Court race to replace outgoing justice Ann Walsh Bradley, one of the liberal bloc members. Liberal Dane County Judge Susan Crawford and conservative Waukesha County Judge Brad Schimel have emerged as the two top contenders for that race. A Schimel victory would lead to the court becoming a 4-3 conservative bloc majority, while a Crawford win would keep the current liberal majority in place.
The election will likely be contentious, given Wisconsin’s “purple state” status. In the 2024 presidential race, Wisconsin was decided by just 29,397 votes (out of more than 3.2 million cast). That being said, the last state Supreme Court race was decided by 11 percentage points, with a liberal newcomer candidate handily defeating a former justice of the court in 2023.
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