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Wisconsin abortion ban’s proposed changes under fire from all sides

Some Wisconsin Republicans on Wednesday proposed modifications to the state's 1849 abortion ban, a move that drew ire from Wisconsin's leading anti-abortion groups and was denounced by Democrats as an attempt to distract voters from the April 4 state Supreme Court election, where abortion access is a key issue.

Within hours of the proposal’s introduction, which came at a news conference with Assembly Speaker Robin Vos, the state Senate’s Republican majority leader shut down the possibility of its passage, saying in a statement that the bill “will not be considered on the floor of the state Senate.” One of the bill’s authors, Sen. Mary Felzkowski, R-Irma, acknowledged earlier Wednesday that there wasn’t sufficient Republican support to pass it out of the Senate.

The bill would modify Wisconsin’s existing abortion ban — which had been unenforceable for decades — to create exceptions for cases of rape and incest and to further define exemptions for medical emergencies.

Even if the Legislature were to approve the bill, it would be vetoed by Democratic Gov. Tony Evers, who pledged in a statement that he would not sign a bill “that leaves Wisconsin women with fewer rights and freedoms than they had before the U.S. Supreme Court overturned Roe.” 

Roe v. Wade was the court’s landmark precedent establishing the right to terminate a pregnancy. The precedent was struck down last summer in the high court’s decision in Dobbs v. Jackson Women’s Health Organization, reactivating Wisconsin’s ban.

Anti-abortion groups cool to proposal

Wisconsin’s three most prominent anti-abortion groups immediately voiced concerns with the proposed modifications to the state’s ban, with two outright opposing them.

“Wisconsin Right to Life agrees that we may need to update (the state’s abortion ban), but also understand it is currently in the courts and await that decision,” legislative director Gracie Skogman said in an email. “We appreciate efforts to help better understand the life of the mother exception. However, there are parts of the updated language we have concerns with and hope to address these concerns with the authors of the bills.”

The conservative Christian group Wisconsin Family Action opposes the bill, the organization’s president, Julaine Appling, said in an email, arguing that it “would be the first step in fully legalizing abortion again in Wisconsin.”

Pro-Life Wisconsin legislative director Matt Sande said in an interview that the group is “very disappointed” Republican lawmakers “are working to restore abortion in Wisconsin.” 

“A vote to add more exemptions to Wisconsin's abortion ban is a vote to kill more preborn babies. It's that simple,” Sande said.

All three groups have endorsed former state Supreme Court Justice Daniel Kelly in the April 4 race, which pits him against liberal Milwaukee County Circuit Court Judge Janet Protasiewicz. Protasiewicz is a vocal supporter of abortion access.

Sande questioned whether Republicans announced the proposal — which was accompanied by the reintroduction of a bill that would expand access to birth control by allowing pharmacists to prescribe it — as a way to boost Kelly in the race.

Vos told reporters he is hopeful Kelly will win the election so the question of abortion access will be decided by the Legislature rather than the Wisconsin Supreme Court. A lawsuit seeking to overturn the ban is likely to make its way to the state’s high court, the ideological balance of which will be determined by the April 4 election.

“I don’t think it will (help Kelly),” Sande said of Republicans’ efforts. “I think it inflames the issue. I think it demoralizes, depresses the base pro-life vote when they see Republican leaders weakening the abortion ban, walking back the victory we received with Dobbs. … The perception is bad when you have all these legislators up there at a press conference, especially the speaker. It’s not a good look for the pro-life movement (to see that).”

A ‘middle ground’ proposal

Under Wisconsin’s ban, abortion is illegal in all cases unless the mother’s life is in danger — a circumstance with little statutory explanation. The bill proposed Wednesday would allow abortions “when pregnancy is contraindicated due to a serious risk of death of the pregnant woman or of substantial and irreversible physical impairment of a major bodily function of the woman” or in any circumstance in which the fetus has no chance of survival. It does not say what constitutes “a major bodily function.”

The legislation would allow abortions in the first trimester in cases of rape or incest. While Felzkowski said the bill would not require the victim to have notified police, the legislation itself doesn't outline how rape and incest victims would go about obtaining an abortion.

Both Felzkowski and co-author Rep. Donna Rozar, R-Marshfield, told reporters they heard from constituents and health care providers about their concerns with the state’s ban following the Dobbs decision. 

“Is this an ideal bill? No, this is not an ideal bill because we should be protecting all life. But this is not an ideal world. This is a world where bad things happen, tragic things happen, horrific things happen to people,” Rozar said. “It's in the best interest to put these exceptions on there.”

Sen. Rachael Cabral-Guevara, R-Appleton, who is a nurse practitioner, said she believes the bill is a “middle ground that is acceptable not only for my patients, but for the other medical providers throughout the state of Wisconsin, as well as the constituents that have reached out.”

While Felzkowski said the Senate doesn’t have the 17 votes needed to pass the bill, Vos said he was “pretty confident” the Assembly has the 50 votes needed for approval in that chamber, adding that he hoped some Democrats would be willing to work across the aisle on the legislation.

“This is not a topic to use as a political football. It takes careful consideration; speaking to our constituents and our families,” said Senate Majority Leader Devin LeMahieu, R-Oostburg, in a statement shutting down the bill’s chances in the Senate. “Further discussion on this specific proposal is unnecessary.”

‘Voters are too smart for this’

Wisconsin Democrats thought little of the modifications proposed on Wednesday, with some saying they were impractical and ill-defined.

“It proposes an exception for rape and incest but has no explanation as to how that would work,” Assembly Minority Leader Greta Neubauer, D-Racine, said of the bill, adding it could not “be viable in practice.”

Her comments were echoed by former state Treasurer Sarah Godlewski, an outspoken supporter of abortion rights who ran for the U.S. Senate last year. She said the legislation “makes no sense,” also noting that the proposed exception for victims of rape and incest lacks clarity about what, if any information, is needed to support a victim’s effort to have an abortion.

“This just isn't realistic legislation — it's still putting women's lives at risk at the end of the day,” Godlewski said.

Neubauer, Godlewski and state Sen. Kelda Roys, D-Madison, all said the modifications, which were proposed less than three weeks before the high-stakes Wisconsin Supreme Court election, are meant to distract voters from that race, the result of which could dictate the outcome of the lawsuit seeking to block enforcement of the ban.

Neubauer, who said Assembly Democrats will continue to fight for a full repeal of the state’s abortion ban, told the Cap Times the proposal is “absolutely an effort to try to shape the narrative around the April election.” She said Republicans’ attempt to change the conversation ahead of next month’s election won’t be successful, adding that “this election is a referendum on abortion.”

Godlewski agreed, saying “whatever distractions that the Republican Legislature tries to do, I don't believe Wisconsinites are going to buy into it.”

Roys was even more blunt in her assessment.

“This is about manipulating the media to have some reports and headlines out there that say, ‘A few Republicans are proposing some narrow exceptions to the 1849 criminal abortion ban — see, they're not that extreme,’” she said. “And the hope is to just sway a few voters.”

Roys noted that an attempt from Republican gubernatorial candidate Tim Michels to soften his stance on abortion was seemingly unsuccessful last fall. Michels lost to Evers by 90,000 votes — a landslide in the context of recent statewide elections — in a race that was driven, in large part, by a battle over the future of abortion access in the state.

“Voters are too smart for this,” the state senator said. “They didn't fall for it in November. They're not going to fall for it now. It's way too little, way too late. Nobody should be treating this as a serious (proposal).

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