Wisconsin's new liberal supreme court majority likely to overturn abortion ban

The state’s high court could also toss out a Republican gerrymander, with the potential to net Democrats more seats in the U.S. House.

Romy Stokes, 5, in pink pants and wool hat with ears, clings to her mother, as another protester holds a sign saying: my body. my choice. my vote. Women win!
A rally outside the Wisconsin state Capitol in Madison on April 2 before the 2023 state supreme court election. (Evelyn Hockstein/Reuters)

The Wisconsin Supreme Court, with its new liberal majority, could make abortion legal in the state once again, while also unwinding an aggressive partisan gerrymander that has helped Republicans to control the state.

Janet Protasiewicz will begin her 10-year term on the court Tuesday, replacing a retiring conservative judge and giving liberals a 4-3 majority on the court for the first time in over a decade. The April victory by Protasiewicz, a Milwaukee County judge, was a national story, and the election shattered the previous U.S. record for spending in a court race.

The result was also notable because in a battleground state where many top races are decided narrowly, Protasiewicz won comfortably, defeating her conservative opponent, Daniel Kelly, by 11 points.

A 19th century abortion ban

Demonstrators, many in pink wool hats, gather under an ornate cupola at the State Capitol, with banners over an upper balcony reading Bigger than Roe and Abortion Is Healthcare.
Abortion rights advocates gather at the Wisconsin state Capitol on Jan. 22 to mark the 50th anniversary of Roe v. Wade. (Eric Cox/Reuters)

When Roe v. Wade was overturned by the U.S. Supreme Court in June 2022, an 1849 law banning abortion went into effect in Wisconsin. As reproductive rights advocates have noted, the ban dates to a time when the state did not allow women to vote.

While the law does not punish anyone seeking an abortion, it makes it a felony to perform one unless the procedure is required to save a patient’s life. A doctor prosecuted under the law would face up to six years in prison.

Gov. Tony Evers, a Democrat, has called for special legislative sessions to reverse the ban, but Republicans controlling the Legislature rebuffed him. Last month, every GOP member in both the state Assembly and Senate voted against repealing it. Evers, who was first elected in 2018, has vetoed multiple abortion restrictions passed by the Republican Legislature during his tenure.

Protasiewicz focused on the issue from the moment her campaign began, saying in her first television ads that she “believes in our freedom to make our own decisions when it comes to abortion.”

Supporters of allowing access to abortion won another victory earlier this month when a Dane County circuit judge, Diane Schlipper, allowed a lawsuit by the Democratic state attorney general, Josh Kaul, against the nearly two-century-old ban to continue, after a Republican county prosecutor attempted to have the suit dismissed.

Confusing the issue in the state further, Schlipper in her ruling said the pre-Civil War law does not in fact ban “consensual medical abortions” in the state and would apply only to residents who attacked a pregnant person.

“There is no such thing as an '1849 Abortion Ban' in Wisconsin,” wrote Schlipper.

Gov. Tony Evers speaks to supporters a a podium saying Tony for Wisconsin.
Wisconsin Gov. Tony Evers, a Democrat, in Madison on election night 2022. (Jim Vondruska/Getty Images)

Schlipper is set to make a formal decision on the case in the coming months, after which it is likely to make its way to the new 4-3 court. If the law is overturned, Wisconsin will return to the 20-week ban on abortions that was in place in the state before the reversal of Roe.

Under the previous law, only physicians (rather than other medical personnel) were allowed to perform abortions, and the state also required parental consent or notice for minors and a counseling session at least 24 hours before the procedure.

Abortion rights supporters in other Midwestern states have used different tactics in an attempt to roll back post-Roe restrictions. In Michigan last year, voters passed a ballot initiative establishing a constitutional right to abortion, in addition to giving Democrats a state government trifecta — the governor’s mansion and both chambers of the Legislature — for the first time in decades.

In Ohio, where Republicans have total control of the state government, abortion advocates are hoping to pass a similar constitutional protection via ballot measure in November. A recent poll found 58% support for the measure among Ohioians.

New maps could help Democrats win more races

Janet Protasiewicz, wearing a broad smile, claps as her supporters cheer her on in the background.
Wisconsin Supreme Court candidate Janet Protasiewicz on election night in Milwaukee on April 4. (Evelyn Hockstein/Reuters)

Another issue that is likely to eventually make its way to the court is the state’s partisan gerrymander, which has given the GOP an advantage in holding onto the state Legislature, as well as helping Republicans win races for the U.S. House. Wisconsin has one of the nation’s most extreme gerrymanders, allowing state Assembly Speaker Robin Vos to serve as what Politico has called a “shadow governor,” even though Evers has won two straight terms as governor.

Last year, the court’s conservative majority at the time approved maps drawn by the Legislature, after a ruling against the governor's proposed map came down from the U.S. Supreme Court. The maps that were rejected would have slightly improved Democratic chances and would have created two more majority-Black districts in Milwaukee.

During the campaign, Protasiwiecz described the current maps as “rigged.”

"They do not reflect people in this state,” she said in January. “I don't think you could sell any reasonable person that the maps are fair. I can't tell you what I would do on a particular case, but I can tell you my values, and the maps are wrong."

Should new congressional maps be issued, they could aid Democrats by shifting the current makeup of the U.S. House, where Republicans hold a slim majority. Currently, the Wisconsin delegation includes six Republicans and two Democrats.

In addition to the gerrymander, the court could potentially take another look at a 2022 decision by the conservative majority that restricted the use of drop boxes for ballots. For years, advocates have been critical of Wisconsin Republicans for voting restrictions they have instituted.