Wisconsin judicial elections could affect future of state abortion ban, pro-lifers say

St. Louis, Mo., Feb 20, 2023 / 14:15 pm

Wisconsin voters are set to head to the polls Feb. 21 to vote for a new state Supreme Court justice in a nonpartisan primary. Though turnout in Wisconsin judicial elections is generally low, pro-life advocates say this election will play a major role in determining whether unborn children will continue to receive protection in Wisconsin, a state that currently has a near-total ban on abortion in place.

Wisconsin is the only state in the nation with a pre-Roe v. Wade abortion ban in effect, at least on paper. Wisconsin’s ban, which is contained in Section 940.04 of the Wisconsin Statutes and dates to 1849, allows abortion only to save the life of the mother. The law was unenforceable following Roe v. Wade, but Roe’s overturning last year allowed the statute to come into effect. Still, the state’s Democratic governor and attorney general have said they will not enforce the ban.

Now, Jennifer Dorow, Daniel Kelly, Everett Mitchell, and Janet Protasiewicz are running in the nonpartisan primary this week for an open seat on the Wisconsin Supreme Court, which is being vacated by retiring conservative justice Patience Roggensack. The top two vote-getters on Tuesday will advance to the nonpartisan general election on April 4, Ballotpedia reports. The ultimate winner will sit on the Wisconsin Supreme Court for the next decade.

A leader in a statewide pro-life group said depending on who wins the current judicial elections in Wisconsin, the election could tip the scales of the high court toward more liberal rulings — a major factor in determining whether or not the state’s abortion ban will remain in place or be overturned, as several lawmakers are currently attempting to do.

“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,” Gracie Skogman, legislative and public affairs director for Wisconsin Right to Life, told the National Catholic Register.

Wisconsin Right to Life in January endorsed candidates Dorow and Kelly, citing their “integrity, honesty, and shared belief that the role of the judiciary is not to legislate but to interpret laws and apply them as written.”

“It is vital that the pro-life vote in Wisconsin is activated to vote in this election, as lives are truly on the line … 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,” Skogman continued.

The election is not partisan, but Mitchell and Protasiewicz both have signaled support for abortion, with Mitchell described as a supporter of “reproductive rights” and Protasiewicz saying in a televised ad that she believes “in a woman’s freedom to make her own decision on abortion.”

Skogman explained that the Wisconsin Legislature has a robust pro-life majority in both houses, and many lawmakers 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. In contrast, Democratic Gov. Tony Evers has publicly signaled that he will not sign any legislation that further enshrines 940.04, even legislation that would add rape and incest exceptions, creating a deadlock. Democrats had pushed to get an abortion referendum on the April ballot, but Republicans managed to block that effort.

Pro-choice groups within and outside Wisconsin have identified the state Supreme Court race as a key one in their attempts to get 940.04 overturned. Evers, along with Wisconsin Attorney General Josh Kaul, announced a lawsuit last year to attempt to overturn the law, arguing that it has been superseded by subsequent legislation and cannot be enforced.

The lawsuit is likely to be ultimately decided by the state Supreme Court, which has had a 4-3 conservative majority for the past decade and a half. Pro-life advocates worry that should the state Supreme Court obtain a pro-choice majority, the state’s pre-Roe ban could be thrown out, as happened last year in neighboring Michigan.

The Wisconsin judicial contest is on pace to be the most expensive state Supreme Court race in Wisconsin history, with spending by candidates and outside groups likely to exceed the record $10 million spent in 2020, NBC News reported.

In a Feb. 14 newsletter, the Wisconsin Catholic Conference noted the upcoming 2023 spring primary election and reminded voters that as Catholics, “we are called to form our consciences in light of Church teaching.”

“Human reason tells us that the right to life is the first and fundamental right. Without life, none of our basic human rights — such as food, shelter, liberty — can be exercised,” the conference said in the newsletter.

“In addition, our Catholic faith holds that every human being, at every stage of life, is made in the image and likeness of God. When we encounter one another, we should do so with the understanding that we are encountering someone of transcendent worth, who like us is deserving of respect and protection from conception to natural death.”