While the U.S. Senate has yet to vote on President Donald Trump’s nominee for the U.S. Supreme Court, conservative Judge Brett Kavanaugh, a big question remains: If Kavanaugh or another conservative is approved, what would happen to Roe v. Wade?
If the case were overturned, in Wisconsin there's a law on the books that would make providing an abortion a felony. But, it is unclear whether that law could be enforced.
In July, a handful of protesters who oppose abortion congregated across the street from a clinic on Farwell Avenue in Milwaukee. They held signs, singing and chanting.
Affiliated Medical Services is one of four clinics in the state that provides abortions. At the clinic door, you can hear music pumping out to encourage calmness.
“Nothing too sad or slow, just something with a good, even tempo, just to effectively drown out everything the antis are saying,” said Adam Koebel, one of the volunteers waiting to escort women inside the clinic.
Because of Roe v. Wade and the other federal cases that came after it, Wisconsin law currently must protect the right to an abortion prior to “fetal viability.” Viability has been defined as the point in which the fetus could live outside the womb.
But if the federal law is overturned, that could change. State lawmakers could enact new restrictions or re-enact old ones.
In fact, Wisconsin still has a long-standing law on the books that is unenforceable because of Roe v. Wade.
Marquette law professor Peter Rofes says the law was originally written more than 150 years ago. “In the mid-19th century, Wisconsin passed a law common of state laws in the 19th century that essentially forbade all abortions, with exceptions, but essentially rendered abortion against the law.”
That law has never been repealed. According to Rofes, the law would make it a felony for a provider to conduct an abortion. The only exception would be an abortion provided to save the woman’s life.
So, would that law be enforceable if the U.S. Supreme Court overturned Roe v. Wade?
Wisconsin courts would have to decide, Rofes says, or the Wisconsin legislature could pass legislation saying that the old law kicks in. But he adds no outcomes are certain.
“We are not a state, unlike four others, with a so-called ‘trigger law,’ that would have our ban on abortion immediately spring back after a certain couple of days, after a certain legal development occurs,” he says.
Some attorneys, including Attorney General Brad Schimel, believe Wisconsin’s ban would take effect if Roe v. Wade was overturned. Schimel signed his name to a white paper on the topic in 2012 when he was Waukesha District Attorney.
Planned Parenthood of Wisconsin is preparing for whatever happens.
Nicole Safar, the organization’s director of public policy and legal advocacy, says that, either way, there would be a chilling effect on abortion providers. She says Planned Parenthood is doing everything in its power to prevent that.
“We are organizing our supporters. We’re talking to voters about the importance of electing candidates who support access to reproductive health care. We do all kinds of petitions, both on-line and at events. We’re tabling at festivals and fairs all across the state,” Safar says.
If Roe v. Wade was overturned, Heather Weininger of Wisconsin Right to Life would be pleased to see the door open for the abortion ban on the books. She also says her organization fights those who seek the law repealed every legislative cycle.
Weininger says Wisconsin Right to Life also wouldn’t want to add any more exceptions to the law, like making abortion legal in the case of rape or incest. “If it’s not currently written into the law, we certainly would not want to add that into our laws. A child’s life shouldn’t be determined by how they were conceived,” she says.
Weininger says her organization is also paying attention to the fall elections, working to elect candidates who will back the organization’s point of view.
In the case that Roe v. Wade was to be overturned, both sides anticipate legal and legislative challenges.