Tuesday’s Wisconsin Supreme Court election could determine future of state abortion ban

St. Louis, Mo., Mar 31, 2023 / 06:00 am

The 2023 Wisconsin judicial race, which might have remained obscure in other years even within Wisconsin, is garnering national media attention and record fundraising numbers for the candidates. 

Here’s what you need to know about the April 4 election, when voters will choose who will sit on the state Supreme Court for the next decade. Pro-life groups say this election could help determine whether abortion stays illegal in Wisconsin. 

Why is this election so potentially consequential?

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 state’s Democratic governor and attorney general have said they will not enforce the ban and are currently suing in an attempt to have it overturned.

The law was previously unenforceable following the Roe v. Wade decision in 1973, but Roe’s overturning last year allowed the statute to come into effect. So far, it has not been blocked in court, as has happened with pre-Roe bans in West Virginia and Michigan.

Pro-abortion groups within and outside Wisconsin have identified the state Supreme Court race as the key to getting 940.04 overturned. Gov. Tony 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Attorney General Josh Kaul, announced a lawsuit last year to attempt to overturn the law, arguing that it has been superseded by subsequent legislation and cannot be enforced.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. Now, there is an open seat being vacated by retiring conservative justice Patience Roggensack.

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.

Who’s running in the April 4 election?

In a Feb. 21 primary, Daniel Kelly and Janet Protasiewicz emerged as the two highest vote-getters, advancing to the nonpartisan general election on April 4. Protasiewicz earned the most votes in the February primary and Kelly the second most. The ultimate winner will serve a 10-year term on the state Supreme Court.

The race is officially nonpartisan, so neither Protasiewicz nor Kelly is running as a Democrat or Republican. Donations have poured into the race from across the country, making it likely the most expensive state Supreme Court race in history. Judge Protasiewicz has spent more than $10 million on television ads while Justice Kelly has spent less than $500,000 on them, the New York Times reported. 

Kelly is a former Wisconsin Supreme Court justice who served on the court from his appointment by then-Gov. Scott Walker in 2016 until he was voted out in 2020. He describes himself as a “constitutional conservative” and on his campaign website charges that his opponents are “judicial activists who seek to impose their own political agenda on our state.”

Amid a contentious campaign, Kelly has earned the endorsement of three statewide pro-life groups — Wisconsin Family Action, Pro-Life Wisconsin, and Wisconsin Right to Life.

In contrast, Protasiewicz has garnered endorsements from numerous top Democrats in Wisconsin, as well as from pro-abortion groups such as NARAL, Planned Parenthood, and EMILY’s List. Protasiewicz currently is a judge for Branch 24 of the Milwaukee County Circuit Court in Wisconsin, having been elected to that court in 2014.

Protasiewicz has also won the endorsement of Hillary Clinton. Kelly was endorsed by former president Donald Trump in his 2020 campaign, which he lost — he has not sought Trump’s endorsement in the present race. 

What have the candidates said lately?

The candidates engaged in a spirited debate March 21. During that debate, Protasiewicz pledged to recuse herself from any cases involving the Democratic Party due to the large number of donations she has received from them. She said she has been “very clear about [her] values” during the campaign, but insisted she has made “no promises” to pro-abortion groups such as Planned Parenthood and EMILY’s List. 

“My personal opinion is that [it] should be the woman’s right to make the reproductive health decisions, period,” she said during the debate.

Kelly said during the debate that he is not accepting any funds from the state Republican Party. He said his numerous endorsements from pro-life groups came about after having conversations with them about his pledge to uphold the Constitution, not because of any promise to keep the abortion ban in place. 

Following the debate, Wisconsin Right to Life took issue with Protasiewicz’s characterization of Kelly as a candidate who has “pledged” to uphold pro-life values, saying that the group’s endorsement of Kelly is “based on his judicial philosophy and not based on pledges to uphold any law or policy position.”

What has the Catholic Church in Wisconsin said?

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.”

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In a March 15 statement, the conference urged Wisconsin legislators to oppose legislation that would create an exception in Wisconsin’s statute that would permit children conceived in rape and incest to be killed and expand abortion access in cases of fetal abnormality or risk to the mother.