Yes, local governments in Madison and beyond should literally break an old state law to defend abortion access.
When the United States Supreme Court dismantles Roe v. Wade, Wisconsin’s felony abortion ban will become legally enforceable once again. The law has been on the books since 1849, and the Wisconsin Legislature has never repealed it.
Dane County, the City of Madison, and other local governments around Wisconsin must refuse to enforce this law, and on top of that must take proactive steps to bolster abortion access in the area. They should start doing it immediately, while they still have some meager chance of cover from a Democratic state attorney general, governor, and president. Wisconsin AG Josh Kaul has already pledged not to use the state Department of Justice’s resources to enforce the old abortion ban. This does not, however, stop local prosecutors from enforcing it if they choose.
Public Health Madison and Dane County should start providing surgical abortions and abortion drugs, for free, to anyone who needs them. The city and county jointly operate PHMDC, and should start making emergency budget amendments so that the agency can step up. Now. Buy up as much medication and equipment as necessary while it’s still legal. Network with abortion providers in states with fewer restrictions, and in other countries, to create as many lifelines as possible for people who need abortions. PHMDC already provides free prenatal support, contraception, and STI screening. It’s a big lift, but we can build on infrastructure we already have.
If you’re an elected official in a Democratic-leaning area of the state and you’ve touted your pro-choice credentials to get there, you need to be just as unwavering. Take a break from smugly admonishing people to vote, and start openly defying the state legislature. Start breaking the law. And stop squirming about using the word “abortion.” That is what this is going to take.
If you’re a District Attorney coasting on bullshit progressive bona fides, a public health official fudging on COVID safety at the behest of the business lobby, an Alder or County Supervisor who fails to divert resources from policing and jails into health and housing, well, now is your chance to grow a spine and maybe earn some redemption.
If you’re committed to the rule of law, great. We don’t have that right now. We have a rigged legislature and rigged courts. We face the prospect of unchecked minoritarian rule by the Republican Party. The right is doing everything in its power to weaken the electoral process and assault what few legal and institutional safeguards still stand between them and everyone else’s basic human rights. They’ve worked very hard to gut our political system’s capacity for achieving legitimacy, because they are concerned only with maximizing its capacity to exercise power.
We are not up against a political opposition that bargains in good faith and plays by agreed-upon rules. We are up against people who attempted a coup after losing an election and are still actively working to undermine its results. We cannot get through this crisis unscathed, but we can try to do something constructive in the midst of it. It’s either leap into the void assertively, or let the void devour us. Violence is here, lawlessness is here. Most of us didn’t ask for it and we don’t have to like it, but we need to have strong enough stomachs to confront it.
“Let’s just break the law” is not a brilliant political strategy. I have no doubt that plenty of local electeds, if not most or even all of them, will balk at this. Encouraging government at any level to go rogue creates all sorts of risk and massive opportunities for abuse. It’s desperate. We are desperate. We need to admit to ourselves that we are desperate, that the normal tools of voting and asking politely are not going to be enough. It will get ugly, and there will be setbacks and repercussions. It will get absolutely nightmarishly chaotic before it gets better.
In the context of the abortion issue, there is way more urgency to the notion that the President and Congress can simply ignore the Supreme Court’s authority, and it’s not like Republicans haven’t floated it before. Clarence Thomas’ personal connections to the January 6, 2021 coup attempt also undermine the court’s legitimacy. In the meantime, we can save lives and safeguard vulnerable pregnant people from prosecution. And yes, it’s a good thing that there are already efforts underway to protect abortion access that don’t depend entirely on government.
Police and prosecutors make decisions all the time about which laws are a priority to enforce and whom to target with that enforcement. Non-enforcement is not unprecedented; it’s all in a day’s work. States that have legalized cannabis, for instance, are in open defiance of federal law. Localities, including Madison, that have loosened drug restrictions and enforcement are also selectively skirting both state and federal law. “Sanctuary cities” around the country defy federal immigration officials to protect undocumented people. On the other end of the moral spectrum, several states have broken the law to obtain lethal-injection drugs, for Christ’s sake. Let’s be real: Federal, state, and local governments are not really bound by their own laws when they decide it’s impolitic or inconvenient or too expensive to obey them. Why can’t they break the law to provide a crucial, often life-saving healthcare service?
There are, obviously, all sorts of ways for state and federal officials to punish cities and counties for this—funding cuts, prosecutions of local officials, burying us in litigation, calling in violence from police, military, and vigilantes, going after NGOs that still provide abortions or related services. Screwing Madison and Milwaukee is what Wisconsin Republicans do best, after all. Defiance is massively risky at best. If Madison, Milwaukee, and hopefully some other localities show a united front, though, we can exercise significant leverage of our own. We’re the state’s economic powerhouses and cornerstones of its tax base.
Local governments, prosecutors, and police in Republican-dominated areas of the state will show no hesitation in getting what they want from this moment. They will engage in over-eager prosecutions and arrests that go far beyond what even this barbaric law allows. The short-lived prosecution of Lizelle Herrera in Texas is not the end of this. Fanatical abortion enforcement will be a great way for far-right sheriffs and DAs to bolster their political careers. This climate will also encourage outright violence against pro-choice protestors or anyone known to have performed abortions or advocated for abortion rights in the past—not that there’s anything new about that. Police around the state will let it happen, when they’re not actively joining in. Vigilantism and bounty-hunting are already key features of Texas’ push to outlaw abortions.
We cannot assume that local police agencies, including the Madison Police Department and Dane County Sheriff’s Office, will step up to protect abortion rights. Don’t let the “progressive cop” myth make you complacent. We have to start thinking about how to stop our local cops from going after people who seek abortions, from enabling anti-abortion violence, and from providing unequal enforcement/protection to clinic-blockers and fake clinics. These are all likely scenarios. Competent elected officials would do well to start stripping away police resources if they can’t stay in line. I’m not sure we can count on that. I hope I’m wrong.
In the State Legislature, Republicans will press their advantage to create even more draconian restrictions and harsher penalties. Abortion-obsessed freaks like State Senator Andre Jacques have been waiting for this for years. In the unlikely event that President Joe Biden and Congressional Democrats make good on their efforts to codify Roe in federal law—and in the even more unlikely event that federal courts packed with Federalist Society ghouls don’t immediately shoot down such an effort—Republicans in state legislatures are not going to stop their relentless efforts to undermine abortion rights. As plenty of people have already pointed out, Republicans won’t stop at outlawing abortion. The fall of Roe gives them an opening to tear back through decades of case law to shred privacy rights and sexual freedoms of all kinds. Republicans have already launched an all-out assault on trans people across the country. Everything is on the table.
PHMDC and other units of local government should also aggressively go after “crisis pregnancy centers,” fake clinics that target pregnant people with medical misinformation. Yes, we have them here in Madison. They are often set up near actual abortion clinics and operate under deceptive names. A big part of what public-health officials do is messaging. They need to message about where these fake clinics are, what they’re called, and why they’re dangerous.
The Supreme Court decision, when formally handed down, will deal an immediate blow to abortion access in Wisconsin. Tanya Atkinson of Planned Parenthood of Wisconsin, which operates two of the state’s four abortion clinics, told Wisconsin Public Radio in December 2021 that “Planned Parenthood follows the law.” In other words, once Wisconsin’s ban goes back into effect, Planned Parenthood plans to stop providing abortions in the state. Simple non-enforcement will not be enough.
Note that in that same Wisconsin Public Radio story, a lobbyist with anti-abortion organization Wisconsin Right to Life acknowledged that officials around the state could choose not to enforce the ban, saying: “there could be issues with enforcement … But that is a battle we are willing to fight.” Let’s not disappoint them. Yes, this will amount to picking a draining, expensive fight with well-funded anti-abortion groups. If you hadn’t noticed, they’re already determined to bring that fight to us, whether we pick it or not, and they’ll continue that fight until the entire country becomes an irredeemable fascist hellhole.
Going rogue on abortion restrictions should be the first but not the only challenge that local governments in Wisconsin mount to illegitimate state laws. During his two terms as Governor, Scott Walker worked with legislative Republicans to enact a host of state-level laws that preempt the abilities of local governments to make their own decisions about a number of important issues, from renter protections to employment regulations to gun control. We should be testing these laws, relentlessly. We know our governments are going to do crimes. We might as well get some good ones into the mix.
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