MILWAUKEE — As candidates for Wisconsin’s Supreme Court seat engaged in a recent debate leading up to early voting, the topic that took precedence was abortion rights. The debate moderator wasted no time in bringing up the issue, which has emerged as a pivotal factor in the upcoming April 1 election.
This particular election is crucial as the succeeding candidate will play a significant role in future abortion-related litigation outcomes. The election will determine the balance between liberals and conservatives on the state’s highest judicial body. Dane County Judge Susan Crawford, backed by Democrats, has placed abortion rights at the forefront of her campaign platform. Her opponent, Brad Schimel, a former state attorney general, enjoys Republican support.
“Abortion remains an important topic,” according to Charles Franklin, a political scientist from Marquette University. However, he noted that neither candidate has been as vocal on contentious issues compared to the intense 2023 state Supreme Court race that shifted the court to a liberal majority.
Democrats hope that concerns over the potential reinstatement of an 1849 abortion ban, which criminalizes “the willful killing of an unborn quick child,” will energize voters. The Wisconsin Supreme Court is currently deliberating on reviving this 175-year-old statute. Concurrently, Planned Parenthood of Wisconsin has initiated a separate legal challenge requesting the court to affirm the existence of a constitutional right to abortion within the state.
Historically, the 1849 law was enacted a year after Wisconsin achieved statehood when economic foundations were largely built on lead mining and lumber following the displacement of Native American tribes. During that era, herbs encouraging uterine contractions were commonly used for abortions, explained Kimberly Reilly, a professor specializing in history and gender studies at the University of Wisconsin-Green Bay.
“This was a time devoid of women in legislative bodies,” Reilly adds. “Marriage essentially meant a woman lost her legal identity. Her husband would act on her behalf legally. She couldn’t own property or engage in contracts independently.”
The revisitation of dormant laws is significantly affecting current abortion regulations following the 2022 U.S. Supreme Court decision to overturn Roe v. Wade, which eliminated a federally recognized right to abortion. The resuscitation of an 1864 Arizona territorial abortion law last year serves as an example of how historical restrictions can provoke national debate. Similarly, century-old abortion laws shaped by all-male legislatures in states like Alabama, Arkansas, and Texas — times when women were denied voting rights, and scientific understanding of pregnancy was rudimentary — remain influential in post-Roe policy-making in several states.
Such laws are often inflexible, lacking clauses for rape or incest exceptions, mandating severe penalties for providers, and outlawing the practice early in pregnancies. Although some legislation has undergone repeal or legal challenges, they still loom large in the abortion discussion.
During the March 12 Supreme Court debate, Crawford refrained from commenting directly on the 1849 abortion case. Instead, she emphasized her legal experience with Planned Parenthood of Wisconsin, advocating for women’s autonomy in making healthcare decisions. In a recent ad, she accused Schimel of distrusting “women to make their own healthcare decisions.”
Schimel, identifying as “pro-life,” historically supported maintaining Wisconsin’s 1849 abortion ban. He navigated around abortion-related queries during the debate, suggesting that the matter should be subject to public voting. However, Wisconsin lacks a direct voter initiative mechanism, unlike other states.
Anthony Chergosky, a political scientist at the University of Wisconsin-La Crosse, noted that Schimel appears to be deploying a Republican strategy to sidestep the abortion debate by deferring to individual states’ electorate decisions.
Nonetheless, the message has resonated with Democratic supporters, many of whom highlighted abortion as their primary concern when voting early. Liberal voter Jane Delzer, 75, from Waukesha, declared, “A woman’s right to choose is my biggest motivator. I’m deeply worried about what Schimel may do on abortion.”
Conversely, Republican voters predominantly voiced concerns about immigration and economic matters, echoing themes that played a significant role in Republican Donald Trump’s victory over Democrat Kamala Harris in last November’s presidential election. Prosecuting abortion further on the court was a top priority for Lewis Titus, a 72-year-old volunteer from Eau Claire, asserting that Schimel best represents those values.
Despite being a pivotal subject, the abortion debate holds less weight compared to two years ago when a race for Wisconsin’s highest court illustrated the extent of state Supreme Court races in terms of financial expenditure and national influence.
In this election season, candidates have largely focused on topics such as “criminal sentencing and portraying opposition as lenient on crime,” as noted by Howard Schweber, University of Wisconsin-Madison professor emeritus in political science.
Crawford has not only turned the race into a potential evaluation of Trump after his initial months in office but also touched upon Elon Musk, the tech magnate spearheading Trump’s cost-reduction initiative and who financially sustains two groups spending extensively on campaigning for Schimel.
“Abortion was an electrifying issue two years ago, clearly observable leading up to the voting day,” Schweber reflected. “Despite witnessing some similar trends, the fervor isn’t as pronounced. Oddly, the underlying issues and implications have remained constant.”
The shift to prioritizing other issues may stem from Democratic concerns that the abortion debate might not resonate as deeply following notable electoral setbacks in November, even as Harris centered her campaign on reproductive rights, as several Wisconsin political experts noted.
According to Franklin, the political scientist, abortion still holds potential for motivating Democrat voters, but it may not feature as prominently on the agendas of independent voters, who are anticipated to substantially influence the race’s conclusion.
“In the initial period after the overturn of Roe v. Wade, voters considered it a burning issue,” he remarked. “However, as states have consolidated their respective abortion laws, it seems less likely to drive voter turnout. Last fall, Democrats were convinced abortion was their ace card for securing the presidential and Senate seats. Yet, the results didn’t align with those expectations.”