Gestures from the County Board don’t (and mostly can’t) change Wisconsin’s legal landscape around abortion.
Dane County has declared itself an abortion “sanctuary,” passing an ordinance recognizing the harm in Wisconsin’s abortion ban and taking steps to protect the privacy of abortion seekers. But declaring itself an abortion “sanctuary” could be dangerously misleading.
On September 22, the Dane County Board Of Supervisors passed ordinance 2022 OA-029, claiming to take action to protect abortion access in our community. The County recognized the harm of Wisconsin’s 1849 statute, which currently makes it a felony to provide an abortion in Wisconsin, and declared that the harm “must be mitigated.” The ordinance affirms “abortion care is a fundamental right and access to abortion care is essential for social and economic equality and reproductive autonomy.”
Although the County Board avowed its defense of abortion, its actions have not done so. The County Board’s ordinance prohibits the county from entering into contracts with governmental or non-governmental agencies that “monitor, investigate, arrest, or prosecute” Wisconsin’s abortion ban. The ordinance also prohibits the county from funding any program to that effect.
Without context, the ordinance appears to take sensible steps towards protecting abortion in Dane County. However, the law does not operate out of context. The legal reality is that these ordinances have no effect on abortion access and, despite their intentions, don’t challenge the county’s funding for the only agency that will ever fund investigations and prosecutions of Wisconsin’s abortion ban.
Abortion has been illegal in Wisconsin since 1849, but the U.S. Supreme Court’s decision in Roe v. Wade rendered Wisconsin’s law unconstitutional, and thus unenforceable, from 1973 to 2022. Since the court’s decision in Dobbs v. Jackson Women’s Health earlier this year, medically-supervised abortions are only legally available under circumstances threatening a pregnant person’s life. Since the county passed this ordinance, the circumstances are just the same, which were similarly unaltered by the City of Madison’s resolutions. The 1849 statute is still the law of the land in Wisconsin. Of course, self-managed abortions are accessible through various means, a matter unaffected by the County Board’s ordinance.
Either by misunderstanding or lack of political imagination, the County Board’s ordinance intervenes at a level of government where, not only is nothing currently happening, but legally nothing could happen with respect to abortion surveillance. A review of current county contracts and the budget shows that the county doesn’t currently fund the monitoring of abortions—nor, explicitly, enforcement of the abortion ban—so on its face, this ordinance doesn’t change anything. There is no Dane County “abortion monitoring department,” nor is there some outside organization that does this with county money.
Even in a future in which the County Board wanted to monitor abortions—let’s say that Republicans sweep the next County Board election. (Which you may be surprised to learn isn’t too far off from reality, since most seats go uncontested in low-turnout elections that allow conservatives to easily find their way onto the board). Even if this happened, the County isn’t involved in the abortion healthcare system and therefore cannot start monitoring it. This system primarily involves abortion providers, the private clinics and hospitals in which they work, the Wisconsin Department of Health Services, and insurance companies all knotted together by electronic medical record systems. Since the county does not have a role in this system, it would have to break state and federal law to do any kind of monitoring of healthcare within this system. County bureaucracy cannot access private health data without patient consent, nor does it have the legal authority to mandate healthcare providers to turn over anonymized data. County officials can’t just barge into Meriter Hospital or Planned Parenthood and start taking notes.
If the county doesn’t already have access to data about abortions (because it’s not involved) and it can’t get access (because it would be very obviously illegal), this prevents the county from using bureaucracy to monitor abortions. Yet, bureaucracy is only one possible way in which abortions and reproduction can be monitored for state enforcement. As a thought experiment, let’s say the county tried to crowdsource data about abortions and set up an agency that basically just answered phone calls from community members reporting their friends and family who got abortions. The point of this agency would be to receive these reports, investigate them, and make arrests so that the Dane County District Attorney could prosecute violations of the abortion ban. Very much unironically, this agency already exists—it’s called the Dane County Sheriff’s Office.
Because the 1849 statute makes providing an abortion a felony, anyone can call and report crimes and ask law enforcement to intervene. This kind of community monitoring is outside of the control of the county, because the county can’t pass an ordinance or ordinance preventing the public from reporting violations of state law. Indeed, while county bureaucracy cannot access confidential medical records, a law enforcement officer with a warrant can. In effect, the county funds the primary mechanisms of enforcement of the abortion ban—Sheriffs and District Attorneys. A look back at case law related to the abortion ban shows that it was prosecuted just as any other criminal law (for examples, Rodermund v. State, State v. Dickinson, and State v. Foster), meaning that community members reported crimes, Sheriffs investigated them, District Attorneys prosecuted them, and jails and prisons carried out sentences.
And here is why the ordinance is meaningless: the county doesn’t fund a specific abortion monitoring agency that will now be defunded as a result of this ordinance. Yet, the county funds the Sheriff to enforce all state laws. Since Dane County funds the Sheriff’s office (and the District Attorney) to enforce the laws of Wisconsin and Dane County en masse, they are not “under contract,” nor specifically funded by a county budget line item that would be affected by this ordinance. Thus, while Dane County may not put “enforcement of the abortion ban” in its budget, it funds the instruments of enforcement nonetheless: if the Sheriff wants to arrest someone under the 1849 statute, he and his deputies are entirely within their authority to do so, regardless of this ordinance.
Wisconsin Attorney General Josh Kaul and Dane County District Attorney Ismael Ozanne have both promised to refrain from prosecuting the ban. However these statements only carry the weight of personal promises, not systemic obligations, to protect abortion. The county’s “sanctuary” ordinance does nothing to prevent its own law enforcement officers from enforcing the abortion ban, a matter elided from the County’s proclamations. Dane County’s governments—both municipal and county—consistently refuse to acknowledge the violence and harm caused by their law enforcement agencies, and instead cling to a fantasy that these agencies are exceptionally progressive, in stark contrast to the racialized violence they carry out.
Governor Tony Evers vetoed a slew of Republican-sponsored bills over the last year that were barely more than photocopies of the most retrograde abortion laws from around the country. The violence caused by lack of access to abortion—preventable deaths of pregnant people, intergenerational trauma, poverty—may soon be compounded by the violence of criminalization. Dane County’s inability to see itself as a part of that violence—instead dreaming up hypothetical county programs that would enforce the ban—prevents it from taking any meaningful action against the ban. Taking action to protect abortion access means challenging police violence and the carceral state, something that Dane County’s government has been unwilling to do.
Movements for reproductive justice and abortion access must challenge the presumptive norms of policing and incarceration. The most successful movements for abortion access in the last 20 years —including those in Ireland, Mexico, and Argentina—have not only rhetorically challenged state violence, but actively worked to subvert it. Thus, either we must admit that the county is the wrong site for intervention for reproductive justice movements (which should instead focus on state and national sites of power) or embrace that meaningful political action at the county level means challenging policing and jails, not passing ordinances that deliberately ignore the county’s involvement in those systems.
While Dane County can’t do anything to protect abortion within generally accepted interpretations of the law, the county could push those interpretations to their very limits in order to expand access and mitigate harms at this dire moment. For example, the county could enact a county-run abortion support service, including a hotline for anyone seeking an abortion that would help them procure self-managed abortion medications, access high-quality reproductive healthcare information, and, most crucially, provide free rides to appointments and other financial support in neighboring states for anyone seeking an abortion. Further, the County Board could make the Sheriff’s budget contingent on complete abstinence from arresting or incarcerating anyone for violation of the ban—in addition to decreasing the budget in the first place. Instead, the County Board appears poised to increase DCSO’s budget for 2023.
The County could go further and truly innovate by creating a novel program for providing medication abortions (mifepristone and misoprostol), assuming liability on behalf of the county and providing the pills without asking for justification and with no medical providers involved, which is just as safe as when they are involved. The county could look for any and every ragged edge of legal and practical possibility and seize onto it while daring the courts and legislature to stop them.
Instead, we have nothing. We do not have access to abortion. We certainly are not an abortion sanctuary.
The 1849 state statute is the barrier keeping abortion providers at bay. Polite toothless action, non-binding referenda, or simply proclaiming dissatisfaction will not change the law. And as long as the 1849 law holds, we will not have access to medically-supervised abortions in Dane County, causing ever deepening violence against pregnant people. Political actions with the goal of securing abortion access must directly confront this law, whether by directly revoking it, actively undermining the state’s capacity to enforce it, or providing access to abortions in spite of the law.
This is why we have to fight to Strike The Ban. We will not stop until abortion is legal and accessible, on demand and for any reason, for everyone in the State of Wisconsin.
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