Wisconsin currently has a law banning almost all abortions, that has been on the books for more than 170 years.
MADISON (WKOW) -- Wisconsin is one of more than 20 states with an abortion ban set to become active should the U.S. Supreme Court strike down the Roe v. Wade ruling that guarantees a women's right to an abortion.
However, Wisconsin's law would likely be immediately challenged in state courts before any abortions in the state could be investigated and prosecuted.
A draft of the Supreme Court's majority opinion obtained Monday by Politico shows the conservative majority on the nation's high court was poised to overturn Roe in its entirety, maintaining there's no constitutional right to abortion for women.
Under an 1849 Wisconsin law, it is a felony to provide an abortion, which is punishable by up to six years in prison. The only exception under the law is for instances where a mother's life is at risk. Mothers themselves could not be prosecuted under the law.
Attorney General Josh Kaul, a Democrat, said in an interview Tuesday he wasn't certain the law would immediately take effect should Roe be overturned.
"Whether a law that has been dormant for essentially two generations would all of a sudden spring back to life is really an unprecedented issue," Kaul said. "I think there'd be litigation over that."
Kaul, the state's top law enforcement official, said his office would not uphold the abortion law, saying the Wisconsin Department of Justice was better served focusing its resources on other crimes like homicide and drug trafficking.
"The resources for the Wisconsin Department of Justice will not be used to investigate or to prosecute people for alleged violations of that abortion ban," he said.
As for whether Kaul would direct DOJ lawyers to actually argue in court against the 1849 law, Kaul said that was something the agency would "continue to assess."
UW-Madison Political Science Professor David Canon agreed that the end of protections under Roe would spark lawsuits in Wisconsin that would challenge the 1849 law. He said the officials to watch most closely, though, would be district attorneys.
"It actually is up to the DAs in the three counties in Wisconsin where abortions are provided right now," Canon said. "So Dane County, Milwaukee County, and Sheboygan County."
Planned Parenthood operates three of the state's four active centers that provide abortion - one in each of the three counties. Lisa Boyce from Planned Parenthood of Wisconsin said the provider would stop providing abortions should the state law be upheld. That would potentially leave one provider working in Milwaukee.
Canon said prosecutions could be complicated in medically induced abortions which, according to Department of Health Services data, were the method used for one-third of the abortions provided in 2019, the most recent year for which state data were available.
According to the DHS data, Wisconsin has experienced a steady decline in the number of reported abortions, going from a high of 21,754 in 1980 to 6,511 in 2019.
While the 1849 law has a very narrow exception, some Republicans want to change the law so that all abortions are outlawed.
A spokesman for gubernatorial candidate Rebecca Kleefisch said the former lieutenant governor opposes abortion under any circumstance. A spokesman for Tim Michels said the co-owner of Wisconsin's biggest construction company supported the 1849 law, allowing abortions only when the mother's life is at risk.
The campaigns of Kevin Nicholson and Tim Ramthun did not immediately provide responses Tuesday. The Milwaukee Journal-Sentinel reported in March they do not support any exceptions.
David Varnam, the former mayor of Lancaster now running for lieutenant governor said on Capital City Sunday his pro-life stance was the cornerstone of his campaign.
"I believe that life is precious and I believe we need to do a better job as a state protecting all life in all forms regardless of how that life came into being," Varnam said. "I don't support any exceptions."
