Governor Evers and other state elected officials have violated their oaths of office by deciding not to enforce a statute that prohibits most abortions.
Governor Evers and other state elected officials have violated their oaths of office by deciding not to enforce a statute that prohibits most abortions.
I n Wisconsin, as in other states, the governor is charged with a duty to “take care that the laws shall be faithfully executed.” He or she takes an oath, promising to support the constitutions of the United States and Wisconsin and to faithfully discharge this duty. But the state’s current governor, Tony Evers, has a unique take on that obligation. Calling the recent United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization “bullsh**,” Evers has announced that he will grant clemency to any physician who is charged with violating a state statute prohibiting abortion. (A woman obtaining an abortion cannot be charged under the law.) In categorically promising to excuse all violations of this particular law, Evers has arrogated to himself the power to rescind it. On abortion, he believes himself to be not only governor but judge and lawmaker.
The problem, Evers says, is that the law is just too old. Wisconsin’s abortion law provides that life begins at conception, prohibits even “pre-quickening” abortion, and has an exception only for those cases where the procedure is necessary to save the life of the mother. It was signed into law on March 31, 1849, as one of the newly admitted state’s homicide statutes, and it has been amended several times in the ensuing 100 years. Although the legislature has enacted numerous other abortion regulations during the almost 50 years that the 1849 law was unenforceable due to Roe v. Wade, this early broad prohibition on abortion was pointedly not repealed. While one might think that such a statute has enjoyed a robust public commitment, Wisconsin’s reproductive plenipotentiary sees things differently. For Governor Evers, the fact that the law was “written before the Civil War, or before women secured the right to vote” somehow means that it ought not be enforced. Because, I suppose, Dobbs was “bullsh**.”
Evers is not alone. Wisconsin’s Democratic attorney general, Josh Kaul, has said that he will not enforce the law, and the district attorneys of Milwaukee and Dane Counties have said they will not prosecute anyone who violates it. Each of these law-enforcement officers claims that they’re only exercising prosecutorial discretion, engaging in a garden-variety prioritization of limited resources. Of course, they’re doing no such thing. Kaul and the local prosecutors are categorically refusing to enforce a law that they do not like. They are not making individual assessments based on the evidence or degree of culpability. They are not accepting the legislative determination that unborn life must be protected and then engaging in a good-faith balancing of it against other enforcement priorities. They are ignoring the law altogether.
Unlike, say, President Jimmy Carter, who granted a somewhat-notorious amnesty to a clearly identifiable, limited group of Vietnam-era draft dodgers, Evers is offering a clemency that is prospective and unlimited. It does not seek to end a culture war, but to fight one. His promise of a pardon for all who break the law, along with the decisions of the attorney general and the county prosecutors to stand down, effectively repeals the law prohibiting abortions. When executive officers nullify the law by refusing to enforce it, they are violating our constitutional separation of powers. Only the legislature may enact or repeal a law.
In a kinder and gentler political world, even proponents of abortion rights would be concerned about such a blatant abandonment of constitutional duty. But in our Alinsky-inspired world of scorched-earth politics, too many of us believe that the only thing that matters is what you can get away with. Evers, Kaul, and the others know that their supporters care only about immediate policy outcomes. How those outcomes are achieved and what damage might be done to the constitutional order along the way are worries for chumps. They expect to pay no political price.
Rather than enforce the law, Evers and Kaul have doubled down, bringing a hopeless lawsuit against GOP legislative leaders seeking to have the state’s abortion prohibition declared unenforceable. The suit argues that certain statutes passed after Roe that sought to limit abortion in ways that Roe permitted — e.g., by prohibiting post-viability abortions not necessary to save the life or preserve the health of the mother — “implicitly repealed” Wisconsin’s older abortion prohibition, and/or that the latter statute must be interpreted not to apply to “therapeutic” abortions. Such an argument is unlikely to succeed. Implied repeal is strongly disfavored by the courts, and the evident legislative intent in enacting these Roe-era statutes while leaving the state’s older and broader prohibition on the books was to restrict what could be constitutionally restricted at the time while preserving existing state law that was unconstitutional under Roe until Roe was reversed.
But the bigger problem with the suit is procedural. Since lawsuits require a case or controversy, a challenge to a law is typically brought against the public official who is charged with administering it. But the defendants here are legislative leaders — the speaker of the state assembly and the president and majority leader of the state senate — who do not administer the state’s laws. So the case is headed for dismissal, and the plaintiffs know this: They brought it as a political stunt, an effort to energize the base for the midterm elections and for an upcoming state-supreme-court race in which Democrats will be seeking to “flip” a 4–3 conservative majority into a 4–3 progressive majority.
While that may or may not be good politics, it’s certainly not a faithful execution of the laws. Dobbs requires the country to engage in a thoughtful debate about how our laws ought to treat abortion. The challenge in Wisconsin is to decide whether a longstanding and duly enacted prohibition of abortion should be repealed or amended. Governor Evers and Attorney General Kaul are seeking to evade that challenge by claiming powers that aren’t rightfully theirs. They can’t and won’t be allowed to succeed.