life after roe

Wisconsin’s Supreme Court Race Is the Next Abortion-Rights Test

Photo-Illustration: by The Cut; Photos: AP Images

The overturning of Roe v. Wade unleashed chaos across the legal landscape around abortion last year and sowed particular confusion in the state of Wisconsin. An abortion ban dating all the way back to 1849 immediately took effect in June, outlawing the procedure in virtually all instances except where it is required to save the life of the pregnant person. Even though Attorney General Josh Kaul has said he wouldn’t enforce the statute, abortion providers in the state stopped offering care out of fear that they could be charged by local prosecutors who’ve said they would punish providers.

A challenge to this ban has been working its way through the courts, raising the stakes in Tuesday’s election for an open seat in the state’s Supreme Court. Conservatives have been in control of the court for the past 15 years and currently hold a 4-3 majority. But the election could tip the balance, determining whether the lawsuit that aims to overturn the 1849 ban is heard by a conservative or liberal majority later this year.

Whoever wins will fill the seat of a retiring conservative justice. While the election is technically nonpartisan, voters will choose between Milwaukee County Circuit Judge Janet Protasiewicz, a liberal former prosecutor who supports abortion rights, and former State Supreme Court Justice Dan Kelly, who has run on an anti-abortion platform and advised Republicans during their efforts to overturn the results of the 2020 election in the state.

Both candidates advanced to the general election in February after the primary saw record turnout. While abortion has been a focus of the race, Tuesday’s results could also have major implications for a wide range of other issues, from voting rights to the results of the 2024 presidential election. (The court came dangerously close to overturning President Joe Biden’s 2020 victory in the state.)

The race could not only decide whether the ban is lifted, but whether the state constitutionally protects abortion.

Kaul sued to overturn the 174-year-old ban at the request of Governor Tony Evers, a fellow Democrat. Kaul has argued before the court that a 1985 law allowing abortion up until viability, which was implemented following Roe, supersedes the 19th-century ban. He also claims that, since the 1849 law was not in effect for half a century, it is obsolete under a legal doctrine called desuetude.

“Either it is lawful to provide a pre-viability abortion, or it is not,” Kaul wrote in the complaint. “Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity.”

The legal challenge has slowly been moving through the courts, and it is likely to be heard by the Wisconsin Supreme Court after the new justice is sworn in in August. Whoever ends up being that new justice will almost certainly determine how the case is decided. A conservative majority would likely keep the abortion ban in place, while a liberal-leaning majority could go even further than just overturning it.

The court could rule that abortion is protected under the Wisconsin State Constitution, which would prevent anti-choice lawmakers from further restricting the procedure. Such a decision would safeguard abortion care from the whims of the Republican Party, which controls both chambers of the legislature and recently introduced legislation to bar public employees from providing, training to perform, and even speaking about abortion.

Protasiewicz and Kelly are polar opposites.

Protasiewicz, a former prosecutor, has served as a judge for ten years. She was first elected to the Milwaukee County bench in 2013 and oversees cases in family court. Kelly, on the other hand, is a conservative attorney who previously served four years in the State Supreme Court. He was not elected to the position, but was appointed by former Governor Scott Walker before losing the seat in a 2020 election.

The candidates stand on opposite ends of the spectrum when it comes to abortion rights. Protasiewicz has said it’s valuable for voters to understand her pro-choice views. “I can’t make any specific comments as to what I would do when elected as a Supreme Court justice,” Protasiewicz told Wisconsin Public Radio. “What I have told people regarding the 1849 ban: I have been very, very clear that my values are that women have the right to choose.” She’s also said that, despite her personal beliefs, she’d decide any case based on the law.

Kelly is staunchly anti-choice: He has compared abortion to murder and previously offered legal counsel to Wisconsin Right to Life, an anti-abortion organization. He’s said he has not made any reassurances to conservative supporters on how he’d rule if the 1849 ban came before the court.

The endorsements Protasiewicz and Kelly received have split along ideological lines, too. The Milwaukee judge has been endorsed by the State Supreme Court’s three liberal justices, the state Democratic Party, and local and national progressive organizations, while Kelly has been endorsed by two of the court’s four conservative justices, the NRA’s lobbying arm, and local anti-abortion groups. More than 300 doctors and health-care professionals in Wisconsin have also voiced their support for Protasiewicz.

Officials are preparing for record turnout.

Local leaders on both sides of the aisle are expecting the face-off between Protasiewicz and Kelly to be close, given how the vote split in the primary. Combined, Protasiewicz and the other liberal candidate in the primary race received 54 percent of the total primary votes. Kelly and a second conservative primary candidate obtained 46 percent of that vote.

While the share of the primary vote is not an exact predictor of how voters will cast their ballots, the election will likely make history. If turnout during the February primary is any indication, Wisconsinites will show up in record numbers to vote despite it being an off year. About 960,000 people voted in the primary last month — a 36 percent increase from the last record-breaking turnout in the primary election in February 2020. If Protasiewicz emerges victorious, it’ll be yet more proof that abortion rights win elections.

The Next Big Abortion-Rights Test Is in Wisconsin