Much of the state has already been living in a post-Roe world.
How does a 19th-century law banning a medical procedure affect healthcare in 2022? And is it enforceable?
Gov. Tony Evers is betting that the answer to that second question is “no.” On Tuesday, he directed Wisconsin Attorney General Josh Kaul to file a lawsuit in state court that argues that the state’s abortion ban is not in effect.
But until that makes its way through the courts, healthcare providers are proceeding with an abundance of caution, cancelling abortion procedures scheduled after the United States Supreme Court’s ruling in Dobbs v. Jackson Women’s Health was released on Friday.
Because as Barbara Zabawa, an associate professor at UW-Milwaukee and president of the Center for Health and Wellness Law, points out, Wisconsin’s law states that it is the abortion providers, not parents— “at least not yet,” Zabawa notes—who face the risk of prosecution, even though the law does provide an exception when the life of the parent is at risk.
“Certainly Planned Parenthood of Wisconsin pulling out of conducting abortions is indicative of the fear, even with this exception in the statute that would allow for medically necessary abortions,” Zabawa says. “So it will definitely make access to abortion much more difficult and may start bleeding into other kinds of care. I hope not, but fear is a powerful thing.”
Wisconsin’s anti-abortion law was drafted and revised in the pre-Civil War era—decades before women even had the right to vote—and therefore naturally does not spell out when the risk to the parents’ health is great enough that the physician can perform an abortion. Uncertainty about how to interpret that part of the statute is already obstructing people’s access to medically necessary abortions.
Because the law lacks clear guidelines, Zabawa says the decision to pursue charges will ultimately be up to local prosecutors. District attorneys in Dane and Milwaukee counties have said they would not enforce the law; Sheboygan County DA Joel Urmanski announced Tuesday that he would. The only Wisconsin Planned Parenthood clinic outside of Madison and Milwaukee is in Sheboygan.
“District attorneys are elected,” Zabawa says. “This probably would be a platform they would run on depending on the local politics of the counties or the municipalities.”
Jenny Higgins, a reproductive health researcher at UW-Madison, says the impact will be disproportionate according to income and resources. In fact, the state’s current restrictions already are.
“Regardless of what’s happening with the law and its enforceability, people will not be able to get in-state services here,” Higgins says. “This decision will have huge impacts for Wisconsinites, whether or not they can get pregnant. We’ll see impacts of this for individuals and couples and families and communities. We know that if people can’t get care in-state, they will look for care elsewhere if they’re able to get it.”
Abortion providers in Illinois and Minnesota are already bracing themselves for an influx of people travelling to access abortion services. However people taking that route face logistical challenges—time off work, child care, travel expenses—and long wait times.
One important difference between now and the pre-Roe era is access to medical abortions (in pill form) through telemedicine, which Attorney General Merrick Garland has stated he will fight to protect.
“We have evidence that people are already using these services and that use of these services went up with COVID,” Higgins says. “However, not everyone will know about how to access those sorts of services and some might revert to less effective and safe methods of self management.”
And, Higgins says, it’s important to remember that some people—particularly poor people—will not be able to access abortions at all. People living in many parts of Wisconsin have already been living in a post-Roe world.
People in rural areas already tend to live at greater distances from health care services and a series of abortion restrictions former Gov. Scott Walker and the Republican-controlled Wisconsin Legislature enacted during Walker’s term limited access still further.
Oddly enough, Evers and Kaul’s legal argument relies on the idea that these restrictions assume the broader legality of abortions, thus negating the state’s older abortion ban.
“We already have evidence that, when certain clinics closed in our state, since 2010, that birth rates went up significantly in counties that lost the most physical distance to clinics,” Higgins says. “So in Wisconsin there are already people carrying pregnancies to term that they didn’t want to. And we certainly expect that that trend will spike in light of this decision.”
The “Turnaway Study” followed the trajectories of nearly 1,000 women across the country who all sought an abortion. Some accessed an abortion and some were unable to access one.
Over the subsequent decade, the study found, women who were denied abortions were more likely to experience greater household poverty for at least four years; report being unable to meet their basic household expenses, such as food, housing, and transportation; stay in a relationship with a violent partner; be raising their children alone after five years, without family support or a partner; and experience long-lasting negative health consequences from giving birth. Two women in the study died.
The outcomes for their children were also worse than for the average American child. The children the women already had showed worse child development outcomes. The children that were born were more likely to live in poverty and show signs of poor maternal bonding.
Higgins called the Turnaway Study the “gold standard” for longitudinal research studies. She and her team are currently implementing similar studies in Wisconsin.
Threats to more rights
Justice Clarence Thomas explicitly stated in his concurring opinion that he thought the Dobbs ruling opened the doors for the court to revisit other decisions, specifically zeroing in on same-sex marriage, same-sex intimacy (think anti-sodomy laws), and contraception.
But Zabawa says the logic of the court’s majority goes beyond those cases in arguing that any right that is not explicitly spelled out in the Constitution is not guaranteed nationwide, a philosophy known as “constructionism.”
“Throughout our nation’s history, we’ve had phases of court and Supreme Court majorities who are strict constructionists and then the tide changes, and we have a majority of justices who are more reading the document as a living, breathing one where they feel more empowered to make policies through their interpretations of the constitutions,” Zabawa says. “And so clearly we’ve entered another phase in our court’s history where the majority is a strict constructionist kind of majority.”
Even rights as fundamental to our justice system and reinforced through multiple court decisions as the right to privacy are at risk under a constructionist view of the Constitution.
“Even though we have many, many Supreme Court cases assuming that there is embedded within the different provisions of the Constitution—like the First, Fourth, Fourteenth, and the Fifth amendment—a right to privacy. That it’s there, it’s just not explicit,” Zabawa says.
So while the other conservative members of the court argued that the reversal begins and ends with Roe, Thomas’s statement that the court has a “duty to ‘correct the error'” in other cases, may have been the most honest.
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