The U.S. Supreme Court on Friday overturned its rulings in Roe v. Wade and Planned Parenthood v. Casey, rendering virtually all abortions illegal in Wisconsin and 20 other states.
Wisconsin has had a criminal abortion ban on the books since 1849. The ban had been unenforceable since 1973 under the Supreme Court’s Roe decision.
Under that ban, doctors who perform abortions can be found guilty of a class H felony, punishable by up to six years in prison, a fine of up to $10,000, or both. The law includes exceptions for an abortion that is deemed medically necessary to save the mother's life, but does not make exceptions for cases of rape, incest or the mother’s physical or mental health.
The ban was amended in 1985 (post-Roe) to apply penalties to physicians but not to women who seek abortions.
“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” the Supreme Court ruled in Dobbs v. Jackson, the case challenging a Mississippi law that bans abortion after 15 weeks (about nine weeks before most experts estimate fetal viability).
Roe and Casey, taken together, established that a woman has a constitutional right to end a pregnancy before the fetus is viable outside the womb and that states cannot impose restrictions that place an “undue burden” on a woman seeking an abortion.
A draft opinion leaked early last month signaled this outcome.
With abortion regulation under the authority of states, Wisconsin’s ban will take effect with no additional action needed. It will be up to local law enforcement to enforce it.
Democratic Attorney General Josh Kaul said the state Department of Justice is "reviewing today’s decision and will be providing further information about how we intend to move forward next week."
Wisconsin has four abortion clinics; three are operated by Planned Parenthood (in Madison, Milwaukee and Sheboygan). Affiliated Medical Services also operates an abortion clinic in Milwaukee.
Planned Parenthood announced last week that it would only schedule abortions in Wisconsin through June 25 in anticipation of the court’s ruling. On Friday, Planned Parenthood of Wisconsin president and CEO Tanya Atkinson said the organization had temporarily suspended abortion services and is "exploring all legal options."
Evers 'will fight this decision'
Earlier this week, Wisconsin Republican legislative leaders swiftly rejected a call by Democratic Gov. Tony Evers to repeal the state's abortion ban. Evers signed an executive order earlier this month calling a legislative special session to repeal the ban.
GOP legislative leaders gaveled in and adjourned in a matter of seconds on Wednesday, just as they have done for every previous special session the governor has called.
Evers said Friday his administration "will fight this decision in every way we can with every power we have."
The Wisconsin Medical Society, the state's largest association of physicians, "supports legislation that would acknowledge the right of a physician to perform and give advice on this medical procedure — or refuse to do so according to the physician’s training, experience and conscience," said WMS president Dr. Wendy Molaska in a statement.
"Wisconsin law should reflect that priority and ensure physicians can have full and frank discussions with patients about their health care without fear of imprisonment," Molaska said.
Wisconsin elected officials' reactions to the ruling have effectively split along party lines.
"Millions of people’s lives will be made worse by these five right-wing justices, and our nation as a whole is less fair, less healthy, and less free as a result of today’s lawless and unjust decision," said state Sen. Kelda Roys, D-Madison, in a statement.
Roys, one of the lead authors on legislation that would repeal Wisconsin's abortion ban, said she will "continue to fight for reproductive freedom and justice for everyone."
"Being able to control our own bodies and our own reproduction is not just a constitutional imperative but a fundamental human right that no judge or politician can erase," Roys said.
State Senate Majority Leader Devin LeMahieu, R-Oostburg, praised the decision as "a massive victory for the sanctity of life in our nation."
"The Supreme Court’s long-awaited decision restores lawmaking authority to the states and finally gives Wisconsin voters a voice in how they want to protect the most vulnerable," LeMahieu said in a statement.
Wisconsin Right to Life legislative director Gracie Skogman said the day is a "joyful day for the pro-life movement." WRTL executive director Heather Weininger said the group is "overwhelmed with joy to witness Roe V. Wade being overturned."
"But our work does not end here. We must continue to fight for our state statute to remain unchanged, and we must demand that it be enforced," Weininger said in a statement. "We must work even harder to advocate for mothers facing unexpected or challenging pregnancies, and provide more life-affirming resources so that intentionally ending the life of a preborn child becomes an unthinkable option."
Planned Parenthood's Atkinson said the decision "takes away the freedom to control our bodies and personal health care decisions, giving it to politicians to decide."
"Although abortion services are not available in Wisconsin for now, Planned Parenthood’s doors across the state are open and we are here to help patients get the care they need. This includes helping patients access safe abortion care where it remains legal, offering travel assistance, and providing appropriate follow-up care when they return home," Atkinson said in a statement.
A Marquette University Law School poll of some 800 voters released on Wednesday found that 58% of Wisconsin voters believe abortion should be legal in all or most cases, while 35% believe it should be illegal in all or most cases.
‘A profound moral issue’
Justice Samuel Alito delivered the majority opinion, joined by Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented.
“Abortion presents a profound moral issue on which Americans hold sharply conflicting views,” Alito wrote in the majority opinion. “We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely — the Due Process Clause of the Fourteenth Amendment.”
It’s always important when the Supreme Court rules erroneously, Alito argued, but some errors are worse than others. He pointed to the court’s 1896 decision in Plessy v. Ferguson, which established the “separate but equal” doctrine allowing states to continue to enforce racial segregation laws, as an example.
Roe, he wrote, was “also egregiously wrong and deeply damaging.”
“Roe was on a collision course with the Constitution from the day it was decided,” Alito wrote, and “Casey perpetuated its errors.” Together, he wrote, they “represent an error that cannot be allowed to stand.”
Throughout the majority opinion, Alito stressed that the decision is only intended to apply to abortion, and not other cases such as rulings establishing the right for married people to obtain contraceptives (Griswold v. Connecticut), the right to engage in private, consensual sexual acts (Lawrence v. Texas) and the right to same-sex marriage (Obergefell v. Hodges).
“To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion,” Alitio wrote.
In a concurring opinion, Thomas agreed the Dobbs ruling does not affect any of those cases. However, he argued, “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.”
The doctrine of “substantive due process” (which effectively allows courts to protect certain rights from government interference, regardless of whether they are explicitly enumerated by the Constitution) — on which Roe, Casey, Griswold, Lawrence and Obergefell relied heavily — “has harmed our country in many ways” and should be eliminated from the country’s jurisprudence “at the earliest opportunity,” Thomas wrote.
In their dissent, Breyer, Sotomayor and Kagan wrote that the court’s ruling “says that from the very moment of fertilization, a woman has no rights to speak of.”
“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens,” the liberal justices wrote. “Yesterday, the Constitution guaranteed that a woman confronted with an unplanned pregnancy could (within reasonable limits) make her own decision about whether to bear a child, with all the life-transforming consequences that act involves. … But no longer. As of today, this Court holds, a State can always force a woman to give birth, prohibiting even the earliest abortions.”
The dissenting justices argued that “some women, especially women of means” will find ways around state laws banning abortions, while those with fewer resources “will incur the cost of losing control of their lives.”
“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them. The majority thereby substitutes a rule by judges for the rule of law,” they wrote.
The dissent also raised questions about how the application of abortion regulations might apply to reproductive health measures including IUDs, emergency contraception like Plan B or the morning after pill, in vitro fertilization (IVF) and miscarriage management. It predicted potential interstate conflicts, which could arise between states with differing abortion laws.
In his own concurring opinion, Chief Justice John Roberts argued that while the majority opinion was “thoughtful and thorough, its dramatic and consequential ruling (overturning Roe and Casey) is unnecessary to decide the (Dobbs) case before us.”
“There is a clear path to deciding this case correctly without overruling Roe all the way down to the studs: recognize that the viability line must be discarded, as the majority rightly does, and leave for another day whether to reject any right to an abortion at all,” Roberts wrote. “A narrower decision rejecting (Roe’s) misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
