Ron Johnson wants Wisconsin voters to decide abortion laws by referendum. Here's why that's unlikely

Lawrence Andrea
Milwaukee Journal Sentinel

WASHINGTON - U.S. Sen. Ron Johnson wants to see changes to Wisconsin's 1849 law outlawing nearly all abortions, saying that voters in the state should decide how the law is modified.

But the Oshkosh Republican's suggested solution — a statewide referendum — is unlikely to have an impact on the state's law.

Voters in Wisconsin cannot change law by a statewide referendum. Rather, a constitutional amendment is required. But the Republican-controlled state Legislature is unlikely to act on such an effort, and there are no indications of any forthcoming amendment proposals.

“I’ve said about the 1849 law, it doesn’t include the exceptions" for rape and incest, Johnson told the Milwaukee Journal Sentinel this week. "I would at minimum want it updated for that.” 

"My recommendation would be a referendum," he said, adding: "But because this debate has been delayed for 50 years, people really don’t have, I think, the information they need to decide that question: At what point does society have the responsibility to protect life in the womb? Balancing the rights of a mother with the rights of an unborn child."

U.S. Sen. Ron Johnson answers questions from media on Friday, Aug. 12, 2022, at the Wisconsin State Fair in West Allis.

"We really ought to poll the citizens," Johnson continued. "And I’d rather do it through a direct referendum.”

Wisconsin's 1849 law banning abortions except in situations where the mother’s life is in danger went into effect after the U.S. Supreme Court overturned the 1973 Roe v. Wade decision in June.

Democratic Gov. Tony Evers and Attorney General Josh Kaul have filed a lawsuit challenging the 1849 law, claiming it is unenforceable because it conflicts with abortion measures state lawmakers have passed in the years since. 

Johnson's suggestion came a day after he pushed back on a bill from U.S. Sen. Lindsey Graham, R-S.C., that would create a nationwide ban on abortions after 15 weeks of pregnancy.

Johnson has said "we the people" in the 50 states should decide abortion laws.

Still, the Wisconsin Republican's idea for a referendum on abortion is almost certain to fall short.

"Senator Johnson and I agree on exceptions for rape and incest, but in Wisconsin, we don’t enact laws via referendum," Assembly Speaker Robin Vos said in a statement.

More:Ron Johnson won't support same-sex marriage bill in its current form, says 2015 Supreme Court ruling was 'wrongly decided'

More:Ron Johnson and Mandela Barnes race is a toss-up; Tony Evers holds narrow lead over Tim Michels in Marquette Poll

In Wisconsin, voters cannot introduce statewide initiatives or referendums to be voted on at the ballot box, according to the state's Legislative Reference Bureau.  

Voters can help change law, however, through constitutional amendments. Proposed amendments must be passed by the majority of members in both the Assembly and Senate as a joint resolution and once more in the next legislative session. If a proposal makes it through that process, according to the LRB, it must be ratified by the majority of voters in a statewide referendum election in order to take effect. 

Republican lawmakers who control the Legislature have signaled they will not pursue legislation that expands access to abortions beyond the parameters of the 1849 law.

Outside of a constitutional amendment, the Legislature can submit questions to voters in the form of an advisory referendum, which gauges public opinion but does not change law. 

In a statement, Johnson spokeswoman Alexa Henning said the senator is "expressing his long held belief on how this profound moral issue should be resolved," adding that while the "exact procedure" for changing the law may be different, Johnson "is simply proposing a procedure he thinks would be most appropriate."

"Whether or not Wisconsin currently enacts laws via referendums is irrelevant — the law can be changed to allow this specific issue to be decided by 'we the people,'" Henning said.

Johnson's stance on abortion has come under the scrutiny of Democrats since the Supreme Court's decision to overturn Roe v. Wade — a case Johnson said was "wrongly decided." 

He faces an electorate in November that largely supports abortion rights.

A Marquette University Law School Poll released Wednesday indicated 63% of Wisconsinites opposed the decision to overturn Roe, with 29% of Republicans, 66% of Independents and 95% of Democrats reporting they disagree with the decision. 

Wisconsin voters also overwhelmingly support exceptions for women who become pregnant after being raped or are victims of incest, according to the poll. About 70% of Republicans, 83% of Independents and 96% of Democrats said the state "should allow" those abortion exceptions.

On Wednesday, Johnson said the November election "shouldn’t be about" abortion, an issue Democrats have said is vital and have made central parts of their campaigns.  

Democratic Lt. Gov. Mandela Barnes, who is in a tight race with Johnson, has said abortion is "on the line" in November and has called to protect abortion rights.

Maddy McDaniel, a spokeswoman for Barnes, noted Johnson in the past has showed support for legislation that does not include exceptions for rape and incest and has repeatedly backed other federal abortion ban proposals.

"There’s no hiding the extreme positions he’s held for over a decade," McDaniel said in a statement.

Johnson suggested Congress does not have enough time to have "a thoughtful and compassionate and serious discussion on this issue."

“It’s not going to be done instantly," Johnson said of potential changes to abortion laws. "It’s not going to be solved instantly. This could take years, but it requires thoughtful discussion and debate."

Milwaukee Journal Sentinel reporter Molly Beck contributed to this report from Madison.

Contact Lawrence Andrea at landrea@jrn.com. Follow him on Twitter @lawrencegandrea.