Currently, the state’s highest court is made up of 4 conservative justices and 3 liberal justices, but with conservative Justice Patience Roggensack retiring, the majority of the court is up for grabs.
On Tuesday, Wisconsin voters selected the two candidates who will move on to the April 4 nonpartisan State Supreme Court election. Democratic-aligned candidate Judge Janet Claire Protasiewicz and Republican-aligned candidate Justice Daniel Kelly were the two candidates selected with Protasiewicz earning 46.4% and Kelly getting 24.2 % of the vote. The two other primary candidates Judge Jennifer Dorow and Judge Everett Mitchell earned 21.9% and 7.5% of the vote respectively.
With the two candidates for the April State Supreme Court election decided, the importance of this election remains unchanged. The status of abortion access in Wisconsin remains under question, and the upcoming state supreme court election will likely decide the future of abortion rights for the state.
In 1849, the Wisconsin State Legislature passed a statute prohibiting abortion even in cases of rape and incest. The law, which is now commonly referred to as the “1849 abortion law” denies women the right to an abortion at any stage in their pregnancy, only allowing exceptions in cases where the woman’s life is at risk. The law makes it illegal for any person to perform or help perform an abortion at any stage in the pregnancy, and that person can be found guilty and punished with up to six years in prison.
On June 24, 2022, when Roe V. Wade was overturned, Wisconsin reverted back to living under this 1849 law. The decision caused all abortion providers within the state to close as they faced potential prosecution for any abortions performed.
Wisconsin Attorney General Josh Kaul said that he would not enforce the law and Governor Tony Evers said that he will grant clemency to anyone charged under this law. Additionally, Kaul challenged the law in court, claiming that an 1985 law allowing abortion up to the point of viability, usually around 22 weeks, supersedes the 1849 ban, making it unenforceable.
That challenge is currently in the Dane County Circuit Court, but it is likely that once the Circuit Court decides the case an appeal will find its way to the State Supreme Court. And given the slow moving nature of the case, the winner of the race between Protasiewicz and Kelly is apt to be sworn in when it comes before the state’s highest court, and may very well be the deciding vote on the future of abortion rights in Wisconsin.
Kelly, who previously served on the State Supreme Court, has yet to openly state where he stands on the 1849 law and where he would vote to uphold abortion rights. Although Kelly has made some inferences that previous abortion access decisions were improperly decided, he deferred to the fact that he “wouldn’t want to be opining on matters that may come before the court.”
Despite this, Kelly has accepted endorsements from several pro-life groups including Wisconsin Right to Life, Pro-Life WI, and Wisconsin Family Action, all of which support the 1849 law and near total bans on abortion.
On the other side, Protasiewicz has made abortion access a staple of her campaign, earning the endorsements of several pro-choice organizations. While in a recent ad she said that she believes “in a woman’s freedom to make her own decision on abortion.”
With Kaul’s suit unlikely to reach the State Supreme Court until after the new justice takes their seat in August 2023, the future of abortion access lies within the hands of Wisconsin voters. Voters head to the polls on April 4th to make their decision.