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Conservatives exploring legislation to block out-of-state abortions, stop medicinal abortions in Wisconsin

A key to any potential new law is the November gubernatorial election, in which Democratic Gov. Tony Evers, who has vowed to veto any proposed abortion restrictions, will face one of several anti-abortion Republican candidates, including business owner Tim Michels and former Lt. Gov. Rebecca Kleefisch.

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Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a medication abortion, are seen at the Women's Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022.
Robyn Beck / AFP / TNS
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While the U.S. Supreme Court's decision to strike down its landmark Roe v. Wade decision may leave Wisconsin's 173-year-old abortion ban the law of the land, efforts are already underway exploring additional restrictions in the state, including potential legislation to prevent residents from seeking an abortion in neighboring states where the procedure remains legal.

Peter Breen, vice president and senior counsel for the Thomas More Society, said he doesn't anticipate any major legislative proposals in Wisconsin until the Republican-led Legislature returns for session early next year, but he said key items on the conservative law firm's agenda include measures to allow individuals to sue those who help residents terminate a pregnancy in another state and those seeking bans to clamp down on the use of abortion pills.

"We are in a unique period where no one's quite sure where things are going to go. The laws from 50-plus years ago have not had the benefit of the many decades of legal thinking and analysis that have occurred since," Breen said. "So even in a state like Wisconsin, which has a law prohibiting abortion that has now gone back into effect, I would expect to see further legislation to address new situations."

A key to any potential new law is the November gubernatorial election, in which Democratic Gov. Tony Evers, who has vowed to veto any proposed abortion restrictions, will face one of several anti-abortion Republican candidates, including business owner Tim Michels and former Lt. Gov. Rebecca Kleefisch.

Democratic candidates, including Evers and Attorney General Josh Kaul, who are both seeking second terms this fall, have rallied behind reproductive health as a pivotal campaign issue in the upcoming midterm election.

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"There will absolutely be proposals that will punish every type of activity related to helping anyone access abortions," state Sen. Kelda Roys, D-Madison, said. "It is terrifying. These elections are essential, not just to try to stop the further erosion of people's freedoms, but for preserving democracy."

Michels, Kleefisch and fellow gubernatorial candidate and state Rep. Timothy Ramthun, R-Campbellsport, did not respond to requests for comment on what changes, if any, to Wisconsin's abortion ban they would support if elected governor. All three have praised the U.S. Supreme Court's decision.

An ad placed by the Dodge County Chapter of Wisconsin Right to Life that ran in the Beaver Dam Daily Citizen in 2004, when Michels ran for U.S. Senate, noted that he "supports all legislation to prevent minor daughters from being taken across state lines for secret abortions to avoid parental consent/notice laws."

Michels did not respond to questions about the ad.

"Wisconsinites deserve to know how much further Michels and Kleefisch will go to restrict access to reproductive care," Democratic Party of Wisconsin Rapid Response Director Hannah Menchhoff said in a statement. "Governor Evers trusts people to make their own health care decisions and will stand up for access to abortion."

Lawsuit pending

While there's no legal consensus on whether Wisconsin's 1849 law is still in effect, the threat of prosecution under the law led Planned Parenthood of Wisconsin to halt abortions in the state after the Supreme Court tossed out the protections guaranteed under Roe.

Kaul late last month filed a lawsuit challenging the state's abortion ban, arguing that the near-complete ban lay dormant for so long, even as other abortion bans were passed, that courts should declare the earlier law unenforceable.

The 1849 law bans abortions from the time of conception unless it's necessary to save a mother's life, but a subsequent law enacted in 1985 — years after the U.S. Supreme Court declared abortion a constitutional right — only bans abortion after fetal viability and includes an exception for saving a mother's life or health.

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Adam Gibbs, spokesperson for Senate Majority Leader Devin LeMahieu, R-Oostburg, said LeMahieu could not comment on what bills Senate Republicans may consider next session, citing Kaul's lawsuit, which was filed against several state lawmakers, including LeMahieu.

LeMahieu blasted the lawsuit, which he said "illustrates the Democrat Party's disregard for life and the rule of law in Wisconsin."

"We will vigorously defend both," he added.

Assembly Speaker Robin Vos, R-Rochester, who is also named in the lawsuit, did not respond to a request for comment.

Neighboring states

The U.S. Supreme Court's reversal of Roe v. Wade returned the power to ban or allow abortions to individual states.

While Wisconsin's lawsuit could ultimately test the validity of the state's 1849 law, abortion remains legal in neighboring states Minnesota and Illinois. Officials with Planned Parenthood sites in the Chicago suburbs of Waukegan and Aurora have said they are planning for an influx of patients from Wisconsin.

In Minnesota, Gov. Tim Walz last month signed an executive order he said should help shield people seeking or providing abortions in Minnesota from facing legal consequences in other states. Walz has vowed to reject requests to extradite people who are accused of committing acts related to reproductive health care that are not criminal offenses in Minnesota.

"If Wisconsin lawmakers put a law in place that is valid and protects their unborn residents, what business do the elected officials in Minnesota or Illinois have telling Wisconsin how to protect its residents, or telling the people of Wisconsin that you're wrong?" Breen said. "That's very presumptuous of these other states."

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Republican lawmakers in Missouri have proposed measures to allow private citizens to sue anyone who helps a resident of the state have an abortion, Politico reported earlier this year.

Wisconsin Republicans earlier this year proposed an ultimately failed bill that largely mirrored a Texas law passed last year that allows anyone to sue providers who perform abortions after a fetal heartbeat is detected regardless of their standing. The Texas law guarantees victors in such lawsuits at least $10,000 in damages.

However, the prospect of barring residents from abortions in other states is untested.

A review by Poynter over whether states could restrict residents from seeking out-of-state abortions determined that the matter very well could be decided in court.

David S. Cohen of Drexel University, Greer Donley of the University of Pittsburgh, and Rachel Rebouché of Temple University touched on the topic in a legal article published before the U.S. Supreme Court's decision, which was cited by the three liberal justices who dissented in the final ruling.

"As a general matter, states cannot use ordinary criminal laws to prosecute people for crimes committed outside of their borders," they wrote, adding that the rule "has enough gaps to allow prosecution of a wide variety of crimes that take place outside the jurisdiction of a state."

Conservatives currently hold a 4-3 majority on the Wisconsin Supreme Court, though conservative Justice Patience Roggensack will not seek another term in April, meaning the court's power dynamic could shift next year. Two liberal-backed candidates, Dane County Circuit Judge Everett Mitchell and Milwaukee County Circuit Judge Janet Protasiewicz, are running for the seat.

Former conservative state Supreme Court Justice Dan Kelly is also considering a run next year. Kelly was appointed to the court by former Gov. Scott Walker in 2016 but lost his election bid in April 2020 to former Dane County judge and current state Supreme Court Justice Jill Karofsky.

© 2022 The Wisconsin State Journal

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As reported by Douglas County Circuit Court.