Outcomes in Wisconsin Supreme Court race, challenge to abortion law seen as inextricably linked

With the court's 4-3 conservative majority on the line, the winner of the April 4 election will likely be the deciding vote in any challenge to the law.

File: Wisconsin Supreme Court.jpg
The Wisconsin Supreme Court on Wednesday, June 9, 2021, at the Wisconsin State Capitol in Madison, Wis. Angela Major / WPR

MADISON — When voters head to the polls in April, they will not only be choosing a Wisconsin Supreme Court justice. They could also effectively decide the outcome in a highly consequential case currently moving through the courts: the challenge to the state's near-total ban on abortion.

That's because, unlike possibly ever before, one of the candidates has all but pledged to restore the rights the law currently blocks, while the other — though far more silent on the issue — has asserted that abortion "involves taking the life of a human being," the main argument advanced by backers of the 1849 law.

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While both conservative candidate Dan Kelly and liberal candidate Janet Protasiewicz have declined to say how they would rule on the abortion case that might come before them, Protasiewicz has been unusually specific in endorsing the outcome that is at the heart of that case — summed up in the sometimes politically fraught phrase of "reproductive rights."

With the court's 4-3 conservative majority on the line, the winner of the April 4 election will likely be the deciding vote in any challenge to the law.

"We are in fairly new territory here," said Ryan Owens, a UW-Madison political science professor who briefly ran for attorney general as a Republican. "We have seen candidates in the past lay out their judicial philosophies pretty clearly. Judge Protasiewicz, however, takes this beyond what we have seen before."


Milwaukee County Circuit Court Judge Janet Protasiewicz
Contributed / The Badger Project

Hotly contested judicial elections put candidates in an "impossible position," said Charles Geyh, a law professor at Indiana University who specializes in judicial conduct and ethics.

While judges take an oath to uphold the law impartially, they must also win voter support, "which puts pressure on them to curry favor with voters whose views the candidates — as judges — are sworn to disregard," Geyh said. "The noisier, nastier, and costlier judicial campaigns become, the greater the pressure on judicial candidates to behave less like judges than politicians to win their races."

Protasiewicz (pronounced "pro-tuh-SAY-witz") has repeatedly touted her abortion rights views in television ads and on the campaign trail. It led to conservative allegations that she was violating the Wisconsin Code of Judicial Conduct, which prohibits candidates from pledging how they would rule on specific cases. In the past, she's qualified those statements by saying she was only stating her personal values.

Former Wisconsin Supreme Court Justice Daniel Kelly
Contributed / The Badger Project

But after winning a four-way primary on Feb. 21 along with Kelly, the second-place finisher, Protasiewicz' campaign said on Twitter that "reproductive rights are at stake" in the election, a statement that goes beyond the candidate's personal values and suggests what voters can expect from her on the bench.

"It's the same problem as with every other issue that she brings up," Kelly said of the tweet. "She is proposing that she'd go to the court as a politician in a black robe, and that's all she would be."

While Kelly has been far less vocal about abortion than Protasiewicz, he has been endorsed by anti-abortion groups including Pro-Life Wisconsin, which only endorses candidates "who recognize the personhood of the preborn baby and hold the principled and compassionate no-exceptions pro-life position." He also wrote in a since-deleted 2012 blog post calling abortion "a policy deadly to children," and provided legal counsel to anti-abortion group Wisconsin Right to Life.

Another anti-abortion group, Women Speak Out PAC, pledged to put six figures behind Kelly after he became the conservative nominee. National and regional Planned Parenthood groups, meanwhile, have pledged to put seven figures into the race backing Protasiewicz.

"Reproductive rights are absolutely at stake in this race because Dan Kelly's extreme views against abortion are clear," Protasiewicz spokesperson Sam Roecker said.


Nationwide, candidates in judicial elections have become far more vocal about their stances on issues since the U.S. Supreme Court in 2002 clarified that prohibiting candidates from stating their values violated their First Amendment rights, said University of Pittsburgh political science professor Chris Bonneau, who studies the politics of state judicial selection.

"I think the difference (between Protasiewicz and Kelly) is one is being upfront and one is trying to hide behind the charade," Bonneau said. "I mean, look, does anyone really think Dan Kelly doesn't have views on abortion? Of course he does, and that's OK."

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"The question isn't whether or not they have views ... the issue is whether or not they can hear cases fairly," he said.

Kelly's restraint in talking about abortion, Bonneau said, could just as well stem from a key tactic employed by any campaign for public office: "If your views are not mainstream, you want to hide them."

Eighty-four percent of registered voters in Wisconsin favor abortion exceptions for rape and incest, which aren't included in the current ban, according to a Marquette Law School Poll from November. And only 37% of Wisconsinites favor the decision overturning Roe v. Wade.

Although not before the court yet, the challenge to Wisconsin's abortion ban is working its way through the courts after Democratic Attorney General Josh Kaul filed it last June, days after the U.S. Supreme Court overturned Roe v. Wade.

Kaul's lawsuit alleges that the 1849 law, which bans all abortions except those required to save the mother's life, has been superseded by a 1985 state law. That law, adopted after Roe established abortion as a constitutional right, prohibits abortions after fetal viability but includes exceptions to protect the mother's life or health, conflicts with the earlier ban.

Kaul also argues the law banning abortions is no longer in effect because of a legal principle that laws may become unenforceable after a considerable period of disuse.


The case has faced long delays. Initially, Kaul filed the case against Republican legislative leaders. The leaders asked a judge to dismiss the case, saying they don't enforce the law. In September, Kaul refiled the case against the district attorneys in Milwaukee, Dane and Sheboygan counties, where the state's abortion clinics had operated until they suspended operations after the U.S. Supreme Court struck down Roe.

The three district attorneys in December asked a Dane County judge to toss out the lawsuit, alleging that Kaul does not have standing to bring the matter against the elected prosecutors, saying he wasn't personally harmed by the ban and didn't have standing to take the case forward. Kaul disagreed and asked for the case to proceed.

Recently, one of the defendants again called for a Dane County Circuit judge to dismiss the lawsuit, saying the case didn't present a controversy for the courts to settle and noting the law hasn't been repealed by subsequent legislation.

Judges typically decide whether to proceed in a case within 90 days of a briefing or hearing to dismiss the case, whichever is later. The briefing on the district attorneys' motion to dismiss was completed on Feb. 13. There is no scheduled hearing yet. Should the Dane County judge choose to dismiss the case, Kaul would have up to 90 more days to file an appeal.

Whichever direction the case takes, it will almost certainly end up before the Supreme Court. And by that time, Kelly or Protasiewicz will almost certainly be on the bench.

No matter what happens with the current lawsuit, though, other challenges are likely to follow, especially if Protasiewicz wins and gives the court a liberal majority.

Kaul's case asserts the state's abortion laws are incompatible. It does not, for example, allege that the right to abortion is guaranteed in the state Constitution, which is a legal strategy other liberal lawsuits can take.

"Planned Parenthood will continue to monitor the attorney general's lawsuit as well as evaluate its legal options and strategy," Planned Parenthood of Wisconsin legal director Michelle Velasquez said.


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