Evers considers executive action on abortion law

Gov. Tony Evers
Gov. Tony Evers
Published: Jun. 24, 2022 at 10:53 AM CDT|Updated: Jun. 24, 2022 at 7:00 PM CDT
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MADISON, Wis. (WBAY) - Wisconsin Democratic Gov. Tony Evers tells our Milwaukee partner station WISN that he’s considering several options on abortion, including executive action.

Evers recorded a segment for “UPFRONT” with Matt Smith that airs Sunday at 10 a.m. on WBAY-TV. Smith asked the governor what his office would do following the U.S. Supreme Court overturning the landmark Roe v. Wade decision that guaranteed abortion rights. The decision ruled abortion was not protected by the Constitution and states should decide on abortion laws. Wisconsin has an abortion ban on the books that dates back to 1849.

“We are going to do everything we can in my power, whether it’s executive action or working with others on other opportunities to fight this as long and hard as we can,” Evers told Smith.

Smith asked what executive action would look like.

“We’re still working on that. We’re reading through that decision. Obviously I’ve been a supporter of women’s rights to control their own health care and not have Republican legislatures do it,” Evers said.

Evers called the state’s abortion ban archaic.

“We’re going back to pre-Civil War for God’s sake,” Evers told Smith.

Meanwhile, Wisconsin Attorney General Josh Kaul says his office is reviewing the United States Supreme Court ruling and plans to reveal more information next week.

“Roe v. Wade transformed America. For two generations, it protected women’s freedom and health.

“Today’s decision in Dobbs reverses that progress, taking us backwards almost 50 years. It leaves women less free and at greater risk of suffering harm to their health during pregnancy.

“We must now turn to Congress, state courts, and state legislatures. Our office is reviewing today’s decision and will be providing further information about how we intend to move forward next week. We are at a crossroads for the future of reproductive freedom, and we need elected officials to step up and protect access to safe and legal abortion.”

Wisconsin Attorney General Josh Kaul

Wisconsin’s 1849 law bans abortions except to save the life of the mother. The law was passed 12 years before the start of the Civil War. Evers called a special session of the legislature to repeal the state’s abortion law, but the Republican-controlled legislature took no action.

940.04  Abortion.

940.04(1)(1)  Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.

(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:

(a) Intentionally destroys the life of an unborn quick child; or

(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.

(5) This section does not apply to a therapeutic abortion which:

(a) Is performed by a physician; and

(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and

(c) Unless an emergency prevents, is performed in a licensed maternity hospital.

(6) In this section “unborn child" means a human being from the time of conception until it is born alive.

History: 2001 a. 109; 2011 a. 217.

Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).

Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe v. Wade. State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).

The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.

This section is cited as similar to a Texas statute that was held to violate the due process clause of the 14th amendment, which protects against state action the right to privacy, including a woman's qualified right to terminate her pregnancy. Roe v. Wade, 410 U.S. 113 (1973).

The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9 (1975).

The viability of an unborn child is discussed. Colautti v. Franklin, 439 U.S. 379 (1979).

Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297 (1980).

Abortion issues are discussed. Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983); Planned Parenthood Assn. v. Ashcroft, 462 U.S. 476 (1983); Simopoulas v. Virginia, 462 U.S. 506 (1983).

The essential holding of Roe v. Wade allowing abortion is upheld, but various state restrictions on abortion are permissible. Planned Parenthood v. Casey, 505 U.S. 833, 120 L. Ed. 2d 674 (1992).

Wisconsin's abortion statute, s. 940.04, Stats. 1969, is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970).

When U.S. supreme court decisions clearly made Wisconsin’s antiabortion statute unenforceable, the issue in a physician’s action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).


CLICK HERE to read Wisconsin’s abortion law.

Kaul has previously stated he would not assist in enforcing an abortion ban in Wisconsin.

“Even if courts were to interpret that law as being enforceable, as attorney general I would not use the resources of the Wisconsin Department of Justice either to investigate alleged violations of that abortion ban or to prosecute alleged violations of it,” Kaul told the Associated Press.

Planned Parenthood of Wisconsin has temporarily halted abortion services in the state as it waits for clarification from the courts.

Because Wisconsin’s criminal abortion law remains in place, Planned Parenthood of Wisconsin has temporarily suspended abortion services until we receive clarification from a court about whether the law is enforceable. Know that we are exploring all legal options,” reads a statement from Tanya Atkinson, President and CEO PPWI.

United States Attorney General Merrick Garland has promised the “Justice Department will use every tool at our disposal to protect reproductive freedom.”

Supreme Court Justice Samuel Alito delivered the opinion of the high court, which was concurred by Justice Clarence Thomas, Justice Neil Gorsuch, Justice Brett Kavanaugh, Justice Amy Coney Barrett and Chief Justice John Roberts.

“The Constitution does not confer a right to abortion; Roe and Casey are overruled; and the authority to regulate abortion is returned to the people and their elected representatives,” reads the majority opinion.

CLICK HERE to read the full opinion.

Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagen filed the dissent, writing: “Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life.”

“Whatever the exact scope of the coming laws, one result of today’s decision is certain: the curtailment of women’s rights, and of their status as free and equal citizens.”

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