Earlier this month, the US Supreme Court declined to block Senate Bill 8, Texas’ extreme new law banning access to most abortions. People throughout the nation reacted with horror as this country’s highest court gutted the right of pregnant Texans to exercise control over their bodies, turning a blind eye to nearly fifty years of constitutional precedent without so much as an explanation.

Messages of support and solidarity with pregnant individuals in Texas came pouring in almost as soon as news of the decision surfaced publicly. Our thoughts are first and foremost with those directly impacted -- the millions of Texas women and pregnant people who had their freedom to choose, one of the most profoundly personal and private rights Americans have, taken from them literally overnight. The ban prohibits abortion as early as six weeks into a pregnancy — before most are even aware that they’re pregnant. It effectively outlaws 85 to 90 percent of all abortions in the state and would allow ordinary citizens to sue anyone they suspect of “abetting” someone seeking an abortion. A $10,000 reward backs this vigilante-esque enforcement program for successful lawsuits.

The good news, if you can even call it that, is that abortion is currently still legal everywhere outside of Texas, including in Wisconsin. We want every Wisconsinite to know that they can still get an abortion. The Court’s ruling did not overturn Roe. v Wade, it argued that the emergency petition filed by abortion advocates asking for SB 8 to be blocked was procedurally unsound. 

But even though Roe v. Wade and legal protections for abortion in Wisconsin remain intact for the time being, that doesn’t mean it will stay that way. Anti-abortion politicians and judges could roll back abortion rights in Wisconsin. Below we’ve attempted to answer some important questions regarding the SCOTUS ruling and clarify what it means for the people of Wisconsin.

Supreme Court’s Decision

Wis. Stat. 940.04

Wis. Stat. 253.107

1. What did the Supreme Court do in Whole Women's Health v. Jackson?

Q.What did the Supreme Court do in Whole Women's Health v. Jackson?
A.

The Court denied an emergency request from abortion clinics in Texas to temporarily block a law that bans abortions after detecting cardiac activity, which is approximately six weeks. As a result, the law went into effect while the case makes its way through the federal courts. It means that most, if not all, abortion providers in Texas have stopped providing abortions to women who have reached 6 weeks since their last menstrual period, which is more than 80% of women seeking abortions

2. Did the Supreme Court overrule Roe v. Wade?

Q.Did the Supreme Court overrule Roe v. Wade?
A.

No. Whole Women's Health does not say whether or not the Texas law violates the Constitution. The ruling suggests that a majority of the Supreme Court thinks the clinics would have to violate the 6-week ban and wait for a lawsuit from a private party before it could challenge whether the law is constitutional. But the risks of breaking the law are so high (a minimum of $20,000 in "damages" and a future lifetime ban from doing any abortions) that clinics may not want to take the chance. That means it is very difficult, if not impossible, to challenge a law of this sort that deputizes private citizens to enforce the law.

3. Does the Whole Women's Health decision have any effect on abortion providers in Wisconsin?

Q.Does the Whole Women's Health decision have any effect on abortion providers in Wisconsin?
A.

Not directly. Wisconsin has a law on the books that bans abortions altogether (Wis. Stat. 940.04) as well one that bans abortions after 20 weeks gestation (22 weeks after the last menstrual period). Wis. Stat. 253.107. The total ban cannot be enforced as long as Roe v. Wade is in place. The 20 week ban is also likely unconstitutional under Roe, but has not been challenged in court.

4. Could Wisconsin adopt a law like the one in Texas?

Q.Could Wisconsin adopt a law like the one in Texas?
A.

Probably not with the current governor in office. It seems possible that the Wisconsin legislature could pass a law similar to the Texas ban, but it is unlikely that the current governor would sign the bill into law.The elections in 2022, however, could change the composition of the legislature and/or the governor's office in a way that would make such a law more likely to be enacted.

5. So does that mean abortion rights in Wisconsin are safe until 2023, when a different governor might take office?

Q.So does that mean abortion rights in Wisconsin are safe until 2023, when a different governor might take office?
A.

Not really. The Supreme Court has already agreed to hear another major abortion case, Dobbs v. Jackson Women's Health Organization, which could limit, or even overrule, Roe v. Wade. That case will probably be argued in November or December 2021, with a decision announced by the Court by the end of June 2022. 

Wisconsin's outright ban on abortion (Wis. Stat. 940.04) is unconstitutional and unenforceable under Roe v. Wade, which held that states couldn't prohibit abortions before a fetus is "viable," which occurs at about 26 weeks (though some argue that advances in neonatal medicine may make viability earlier). Dobbs involves a 15-week abortion ban in Mississippi that would clearly be unconstitutional under Roe. The Court could use Dobbs to completely overrule Roe, allowing states to ban abortion at any time during pregnancy. If the Court goes that far, prosecutors could start trying to enforce Wis. Stat. 940.04 against doctors who continue to perform abortions. Although there might be some arguments about whether the ban would automatically be enforceable, many doctors may not take the chance, and abortion would become practically unavailable in the state.

But the Court does not have to overrule Roe to do damage to abortion rights. It could make a narrower ruling, allowing some bans or restrictions on abortions before viability, but not others. In that case, it will be harder for anti-abortion groups to argue that Wisconsin's current total ban is immediately enforceable, though any pro-choice challenge to the 20-week ban in Wis. Stat. 253.107 would be very difficult if Mississippi's 15-week ban is upheld. Of course, it is also possible that the Court could strike down Mississippi's 15-week ban and reaffirm Roe, but many observers believe that the current majority of the Court is likely to at least limit Roe somewhat.