Wisconsin pro-lifers face critical tests of their ability to shape abortion policy in the Badger State in two judicial elections on Feb. 21 and April 4 which could shift the balance of the state Supreme Court in favor of abortion. Currently split 4-3 in a pro-life direction, the retirement of Justice Patience Roggensack opens the way for the bench to flip pro-abortion ahead of a major case headed for the tribunal. 

Section 940.04 of Wisconsin Statutes, originally enacted in 1849, prohibits abortion except to prevent the death of the mother. Although Roe v. Wade made the law unenforceable, the June 2022 Dobbs decision allowed Wisconsin to restore its pre-1973 statute. Democrat Gov. Tony Evers and State Attorney General Josh Kaul have been in court since last June, seeking to have 940.04 thrown out.

Wisconsin’s current Legislature is pro-life, and has a number of protections in place. Parental consent is required in cases of abortions involving minors, conscience rights of medical personnel are protected, only doctors can perform abortions in Wisconsin, informed consent and a 24-hour waiting period are required, and babies born alive as a consequence of a botched abortion must be protected. 

In neighboring Michigan, where Democratic Gov. Gretchen Whitmer and Attorney General Dana Nessel used the courts to throw out Michigan’s pre-Roe abortion law while using initiative and referendum to adopt a pro-abortion amendment to the Michigan constitution last November, Democrats also flipped the state Legislature. A referendum effort failed to qualify in Wisconsin, but its pro-life Legislature will likely be stymied by Gov. Evers’ veto. Evers would bypass the Legislature by using the courts to throw out abortion restrictions under 940.04 at a minimum, ideally also discovering a “right” to abortion in the Wisconsin constitution to replace the federal constitutional perch thrown out in Dobbs. 

Under Wisconsin’s electoral system, all Supreme Court candidates will compete in a nonpartisan “primary” on Tuesday, Feb. 21, with the two highest vote-getters facing each other for the seat April 4. Jennifer Dorow and Daniel Kelly are considered pro-life; Everett Mitchell and Janet Protasiewicz, pro-abortion. Dorow is on public record supporting Roe’s reversal, while Protasiewicz’s television ads affirm her belief “in a woman’s freedom to make her own decision on abortion.” Wisconsin Right to Life endorses Dorow and Kelly.

Because only the two top vote-getters advance to the April 4 general election, pro-abortionists are focused on pushing Mitchell and Protasiewicz over the finish line Feb. 21. Off-season judicial elections in the middle of winter often have low turnouts, in which concentrated get-out-the-vote campaigns can shift results. “Women’s March,” the national pro-abortion organization, has been mobilizing a voter turnout drive for Feb. 21. If both pro-abortion candidates win that day, it’s lights out for pro-lifers; even if only one wins, pro-abortionists live to fight another day in April, giving them a second shot at shifting the seat.

Feb. 16 is the last day to request absentee ballots, Feb. 17 the last day to register to vote. 

Gracie Skogman, legislative and public affairs director for Wisconsin Right to Life, spoke with the Register about the election and its importance:

 

What’s the pro-life lay-of-the land in Wisconsin following the reversal of Roe?

Wisconsin is in one of the strongest positions in post-Roe America to protect preborn life. 940.04, our pre-Roe statute, which bans all abortion except those necessary for the life of the mother, is now back in effect and saving lives daily. However, both our governor and attorney general are challenging 940.04 in court and the Wisconsin State Supreme Court will likely have the final decision on whether 940.04 survives.

The state Legislature has a robust pro-life majority in both houses. Many have signaled a willingness to work on further pro-life legislation aimed at supporting women and their preborn children, such as funding for pregnancy resource centers. 

While the governor would like to see unfettered abortion access restored in Wisconsin, there is simply not the support in the Legislature, and the governor has publicly signaled that he would not sign any legislation that further enshrines 940.04, even legislation that would add rape and incest exceptions. 

 

Michigan voters in November 2022 approved an amendment guaranteeing abortion throughout pregnancy in their state constitution. Is that now a real possibility in Wisconsin? 

While there was an attempt to add a referendum to the April 2023 ballot regarding 940.04, with the intent of having the law repealed, the referendum was blocked. 

As pro-life advocates, we understand that we have a long way to go in changing hearts and minds to value and protect life. It would be a significant challenge for Wisconsin’s pro-life movement to protect our pro-life laws if the question of abortion was placed on the ballot via referendum.

Since Dobbs, pro-abortionists have tried to invent “rights” to abortion under state constitutions to replace their lost federal claim, with mixed results: They won in South Carolina and lost in Idaho. Is this a threat in Wisconsin?

The upcoming spring election will determine the balance of the Wisconsin Supreme Court and will likely determine the fate of not only 940.04 but pro-life laws in Wisconsin for years to come. 

 

What challenges are Wisconsin pro-lifers facing in this special judicial election?

Turnout in judicial and off-season elections can be low, allowing organized groups to exert enormous influence. It is vital that the pro-life vote in Wisconsin is activated to vote in this election, as lives are truly on the line. While we celebrate the lives saved by 940.04 in the months following Roe’s overturn, we recognize it is currently facing a serious court challenge that may well be determined by the state supreme court. Many voters feel burned out after the high stakes of last fall’s midterms, and our challenge is to convey the significance of this judicial election. In many ways, it may be far more impactful to pro-life policy in our state than the fall elections were. 

Turnout is always a challenge in spring and judicial elections, especially as this is a non-partisan election. However, many of the judicial candidates have shared their views on the decision in Dobbs, which can be informative for their views on the life issue overall. 

Judge Protasiewicz has already made her position clear in televised add that “I believe in a woman’s freedom to make her own decision on abortion.” While on the other side Judge Dorow has expressed her support for the court's decision to overturn Roe.  Wisconsin Right to Life has endorsed Judge Dorow and Justice Kelly.