The 1849 Abortion Ban, Explained A 173-YEAR-OLD LAW TAKES HOLD

WWHEN ROE V. WADE was overturned in June, near-total bans on abortion went into effect in 18 states, Wisconsin among them. Here, the ban comes from a law written in 1849 – a year after the founding of the state, 12 before the Civil War, and 70 before women had the right to vote in the United States.

The law puts a ban on all abortions except those done to save the life of the mother. The law, which was adjusted in 2001 as part of Wisconsin’s “truth in sentencing” initiative, makes performing an abortion a felony that comes with a maximum penalty of six years in prison and a $10,000 fine.

While the 1849 statute was very much in step with the rest of the country when it was created, it was rarely enforced. Research shows that between 1900 and 1970, an estimated one in every three-to-five pregnancies ended in abortion. Relatively few criminal charges were filed against abortion providers, and by the 1970s, there was a general consensus that bans did not prevent women from seeking out abortions. But they did make them unregulated and more dangerous.

In 1970, three years before Roe, a federal district court declared the Wisconsin 1849 ban unconstitutional. Three years later, when the Supreme Court ruled on Roe, the decision reinforced that opinion. (Those rulings were superseded by the Supreme Court’s Dobbs ruling in June.) In the decades following Roe, Wisconsin introduced myriad laws to regulate legal abortion. All of them were created to address legal abortion, which puts them in direct conflict with the 1849 ban. This, according to a lawsuit filed this summer by the Wisconsin Department of Justice under Attorney General Josh Kaul, makes the 173-year-old law unenforceable.

THE LAWSUIT

In June, Gov. Tony Evers authorized Kaul and the Wisconsin Department of Justice to sue three Republican lawmakers: Assembly Speaker Robin Vos, Senate Majority Leader Devin LeMahieu and Senate President Chris Kapenga. The suit asserts two issues: That the 1849 ban is in direct conflict with newer laws, and that too much time has passed since the law was used to make it enforceable, which in legal terms is called “desuetude.”

In September, the DOJ changed course and added the district attorneys in Sheboygan, Dane and Milwaukee counties as defendants after the legislators insisted they shouldn’t be defendants as they cannot enforce the law. The Wisconsin Medical Examining Board, which is in charge of the licensing and disciplining of Wisconsin doctors, joined the suit to seek clarity for medical professionals, says Dr. Sheldon Wasserman, the chair of the board who is an OB-GYN and Milwaukee County Board member. “We want to know which law to follow,” says Wasserman, who now is also a plaintiff. “Right now, it’s not at all clear.”

Wasserman also hopes a court ruling produces language that clarifies what abortion services Wisconsin physicians can legally provide. The Medical Examining Board needs a law that “reflects modern medicine” to enforce professional standards, Wasserman adds. “It was a different world when this law was written.”

WHAT COMES NEXT

Across the state, district attorneys are in charge of enforcing the law in their counties. That means some may choose to enforce the ban while others won’t. For their part, Evers and Kaul have publicly stated they will not enforce the 1849 abortion ban. Clinics halted elective abortions in the wake of the June ruling.

Evers and Kaul, both Democrats, are up for election on Nov. 8. If Kaul wins and the suit continues, it could very well make its way to the Wisconsin Supreme Court. There, conservative Justice Patience Roggensack will vacate her seat after the April election, with the remaining justices split 3-3 between conservative and liberal leanings.

But if Kaul loses to his Republican challenger, Eric Toney, the new attorney general will likely drop the case and the statewide abortion ban will remain in place and enforced, too. Both Toney and Evers challenger Tim Michels have said they support the 1849 abortion ban as written, without exceptions for rape or incest, though Michels said in September that he would sign a bill creating such exceptions.

AAS THE NEW CHAIR OF THE Wisconsin chapter of the American College of Obstetricians and Gynecologists, Dr. Amy Domeyer-Klenske says there’s one question that hangs over OB-GYN doctors across Wisconsin: How sick is sick enough? That is, how sick does a pregnant patient need to be in order for their condition to justify medically induced abortion care?

It’s a question that Domeyer-Klenske hoped she’d never have to ask. The Supreme Court’s overturning of Roe v. Wade in June put back into effect an 1849 Wisconsin law that bans all abortions except those to save the life of a pregnant woman.

This leaves physicians in what Domeyer-Klenske calls a legal conundrum. Without any guidance from the state, or any previous legal precedent under the law, what qualifies as a medical emergency is up to medical professionals. That is an unnerving question for doctors – and not just those who provide abortions. “What if a patient is bleeding heavily before the fetus can survive outside the womb and they require several blood transfusions?” says Domeyer-Klenske, offering an example of one such scenario.

“We can give them blood. But how many transfusions? How long do we let the bleeding last?”

Every choice comes with risk both for patients and their physicians. For doctors, they could face a felony charge should a district attorney disagree with their assessment of a medical emergency in pregnancy. If they don’t act based on a standard of care, however, they could be vulnerable to a malpractice lawsuit. And for patients, the risk can be nothing short of possible death. “It’s really scary for patients and it’s really scary for doctors,” says Domeyer-Klenske.

That’s why Domeyer-Klenske has joined a group of doctors and lawyers to develop a set of clinical recommendations that lay out what scenarios could count as medical emergency exceptions under the law. Such exceptions could include an ectopic pregnancy, dangerously high blood pressure, or uncontrollable bleeding and subsequent sepsis caused by conditions like a woman’s water breaking far too early in pregnancy.

But while Domeyer-Klenske can list any number of said scenarios, creating a comprehensive catalog of every possible condition is impossible. No two patients are the same. Or, as Domeyer-Klenske puts it, “you can’t make a list of all the things that could kill a person, pregnant or not.”

Until Domeyer-Klenske and her colleagues are ready to circulate a set of clinical guidelines, which themselves would not be binding or universally applicable, many doctors must rely on individual hospital protocols, which can vary.

This uncertainty could also have a severe impact on recruiting new doctors to Wisconsin. “Residents don’t want to come to a state where this kind of care can’t be provided,” says Domeyer-Klenske. “If I were making my decision on where to practice today, I would consider a state that didn’t have these kinds of felony convictions.”

For her part, Domeyer-Klenske says she’ll continue to advocate for Wisconsin doctors by lobbying state legislators to consider both the safety of pregnant women and the doctors who care for them. At the end of the day, says Domeyer-Klenske, doctors just want to take care of their patients. “But none of us want to go to jail,” she adds. “We have to figure out how to walk that line and not be criminalized for it.”

BEFORE THE SUPREME COURT overturned Roe v. Wade, the anti-abortion movement had long positioned itself around one central issue: banning abortion in the United States. Now, without Roe, the once-unified front is beginning to splinter into different battles.

In Wisconsin, both Pro-Life Wisconsin and Wisconsin Family Action, for example, are pushing lawmakers to remove the state’s medical emergency exception. The two groups are also fighting for “fetal personhood,” or a nationwide ban on abortion.

Wisconsin Right to Life, meanwhile, considers itself a more centrist organization, and, according to legislative director Gracie Skogman, plans to pursue a different fight. Here, Skogman discusses what comes next for the anti-abortion organization.

THE PRO-LIFE MOVEMENT HAD A HUGE WIN IN JUNE WITH THE SUPREME COURT DOBBS DECISION. WHERE DOES WISCONSIN RIGHT TO LIFE’S WORK GO FROM HERE?

Our conversations need to be focused on both women and their unborn children. We hear from women who want to have their baby but feel like there are all these challenges if they actually choose that. It has to be the job of the pro-life movement to do everything we can to ensure that those needs are met. Our message in the pro-life movement is that we care deeply about women and want to ensure that they have the support that they need.

HOW DOES WISCONSIN RIGHT TO LIFE PLAN TO DO THAT MOVING FORWARD?

We want to make sure that pregnancy resource centers can actually expand their services and meet the needs of women. And that position is also something that has broad public support, so we think that is a great initiative, not only for the pro-life movement.

THE ANTI-ABORTION CAUSE HAS BEEN SUCH A UNIFIED FRONT FOR SO LONG. HAVE YOU NOTICED ANY FRACTURES IN WHERE VARIOUS GROUPS INTEND TO TAKE THE MOVEMENT?

At Wisconsin Right to Life, our goal is to protect all life from the moment of conception with the medical emergency exception. There are other pro-life groups that would like to remove a medical emergency exception from our current law. We won’t work on legislation unless it has that. We think it’s vitally important.

PRO-LIFE WISCONSIN MAKES IT CLEAR IN ITS LANGUAGE THAT THEY STAND AGAINST THE USE OF ALL FORMS OF BIRTH CONTROL AND DOCTORS WHO PRESCRIBE IT TO PATIENTS. WHERE DOES WISCONSIN RIGHT TO LIFE FALL ON THIS POINT?

We want to have these ongoing conversations about the value of life. I don’t think that conversations about banning birth control are useful in that aim.

DO YOU FEEL THERE SHOULD BE ANY CONSEQUENCES FOR WOMEN WHO SEEK OUT ABORTION CARE? A GROWING MOVEMENT OF ABORTION ABOLITIONISTS BELIEVE THAT WOMEN SHOULD BE CRIMINALIZED FOR ABORTION.

Absolutely not. Women who have abortions often are in challenging positions and they feel unsupported. And there can oftentimes be a lot of pain that follows those situations. Our role is to be supportive and never judgmental in those cases.

IS THE FIGHT TO END ABORTION IN WISCONSIN DONE?

It’s very encouraging to have this victory, but we also realize that this is only the start of the conversation. We are still fighting the battle for a change of hearts when it comes to the pro-life movement. The conversation surrounding our [1849] current law is far from over, and the results of the election in November will play a big role in that. So it’s a victory, but we know that it’s far from over for us.

Wthe caller could be reaching out from any corner of Wisconsin. Some are seeking counsel. Others are motivated by fear and uncertainty. As the phone line coordinator at POWERS, a Madison-based nonprofit that assists women seeking abortion care, Ware knows the women on the other end of the line are looking for help. Ware manages the phone line for POWERS, which is one of four local groups working to connect Wisconsin women with abortion clinics in nearby states where the procedure remains legal.

She joined POWERS in July, after the Supreme Court’s Dobbs decision, as one of only two paid employees at the nonprofit. In her first few weeks, she says they took as many as 15 calls a day from women – all of them anonymous – seeking help. Most needed assistance finding an appointment within a reasonable timeframe and geographic distance. Ware only needs the caller’s location and the gestational age in order to find a clinic that will offer appropriate care.

But logistics are just one part of the job. “There’s also an element of emotional support,” says Ware. “People are calling from a vulnerable place, and I try to make people feel comfortable and meet them wherever they’re at.”

To do that, Ware uses techniques she learned while training as a full-spectrum doula – though she also just believes in approaching people with empathy. “People deserve support in all processes of their life. That includes abortion,” says Ware. “I just really believe in caring for people and being kind.”

If callers need further help, Ware often refers them to other support networks that help with additional costs, such as bus fare, babysitters or overnight lodging. One such group is the Midwestern Action Coalition, a national organization run by Alison Dreith from her Norwegian dwarf goat farm in rural southern Illinois.

Dreith, like Ware, keeps her phone close. So far this year, Wisconsin women have been MAC’s third-most-frequent callers, after residents of Illinois and Indiana. Dreith says most need help with gas money, but sometimes their needs extend beyond transportation costs. One Milwaukee woman, for example, required a three-day procedure, and MAC put her up in a hotel and provided cash for travel, child care and food costs – over $1,000 in total. Ever since Dobbs, Dreith has been fielding more and more calls from as far off as Missouri, Tennessee, Louisiana and even Texas – a more than 800-mile drive to reach a clinic in Illinois.

Looking ahead, Dreith hopes to set up a private texting channel where women can reach members of MAC directly. She also recently started working with the Illinois nonprofit Elevated Access, a group of volunteer private pilots who use their airplanes to fly women from around the country to Illinois clinics.

Like Ware, Dreith’s goal is relatively simple: Make the abortion process as easy and smooth as possible. And while MAC offers many forms of support, Dreith says the most important one is trust – trusting and empowering women to make their own decisions and chart their own path.

JJENNY HIGGINS didn’t need the Supreme Court’s decision to overturn Roe v. Wade to illuminate the impact of an abortion ban on Wisconsin’s social and medical landscape. “This notion that suddenly abortion is unavailable is not true,” Higgins says, the director of UW-Madison’s Collaborative for Reproductive Equity. “Abortion has been unavailable for so many people in our country for a long time.”

Even before this summer’s ruling, women living in poverty faced barriers to care. In rural areas, clinic closures forced women to drive as much as 200 miles to receive abortion care. Many simply couldn’t cover the distance. In cities like Milwaukee, where a quarter of the population lives at or below the poverty line, financial barriers, a lack of education and the inability to afford birth control impacted marginalized groups.

Such barriers have increased birth rates, and Higgins predicts a similar, increased trend will take shape across Wisconsin in coming years. This could have serious consequences in the long term, especially for Black women.

Among those women who seek abortion care, Black women have significantly higher rates of unwanted pregnancies and seek abortions at a much higher rate than white women. In 2019, the abortion rate for Black women was 23.8 per 1,000 women; for white women, it was 6.6 per 1,000. The biggest, structural reason for the racial disparity – in spite of socioeconomic barriers – is Black women’s lack of access to effective contraceptives, according to the Guttmacher Institute, a policy center that supports abortion rights.

In Wisconsin, Black women are already five times more likely to die due to childbirth than white women. And now, for those who cannot afford to cross into Illinois or Minnesota to get an abortion, the risk of death from childbirth is 18 times higher than having a first-trimester abortion. If a national abortion ban were enacted, for example, researchers predict there could be a 33% increase in Black maternal deaths.

Marginalized groups, says Higgins, have been left behind for a long time. And even if change does eventually come, it won’t be before many women die. “We’re looking at decades-long consequences,” says Higgins. “We will absolutely see increases in maternal mortality and morbidity in our state and nationally, too.”