There’s No Right to Abortion in Wisconsin’s Constitution

L ate last month, Wisconsin attorney general Josh Kaul turned Wisconsin into the latest state where pro-abortion forces are trying to impose a radical abortion agenda. And this time, he wants to do it without voters’ even having a say. His preferred method is to get the state’s supreme court to take up a new constitutional issue on appeal in his own case, and then rule that the Wisconsin constitution protects abortion.

Procedurally, Kaul’s case is strained, at best. But more importantly, his arguments fail on the merits.

To understand why, it’s necessary to look at what has happened on abortion in Wisconsin since June 2022. That’s when the U.S. Supreme Court’s Dobbs decision returned to state legislatures the ability to legislate on abortion, which was traditionally a state health and safety issue. When Roe fell, Wisconsin’s pre-Roe Statute 940.04 provided the most protection for mothers and their unborn children in Wisconsin. Once this statute was no longer silenced by Roe, an average of 620 fewer abortions took place in Wisconsin each month.

Before the ink of Dobbs was dry, however, the statute was challenged in state court by Attorney General Kaul, who did not want to protect women and unborn children. He eventually sued the district attorneys (DAs) in Dane, Milwaukee, and Sheboygan counties, where Planned Parenthood, which was impatient to resume its “services,” had clinics. Only the Sheboygan DA declared that he would enforce the law.

Fast-forward to December 2023. The Dane County circuit-court judge granted the “ultimate relief” the attorney general sought and ruled that statute 940.04 “does not apply to consensual abortions, only feticide.” Kaul won. Planned Parenthood eagerly resumed providing abortions statewide. With no threat of prosecution in at least two of the counties, and a court applying the statute only to infanticides, Planned Parenthood started bloodying its hands once more.

Subsequently, the Sheboygan DA filed to skip the next step in the process — the appellate court — and to present the statute directly to the Wisconsin supreme court. On the back of the DA’s petition to bypass, the attorney general petitioned the supreme court to add a new issue to his case: Whether the Wisconsin constitution provides a right to abortion. This is an extraordinary ask by the attorney general for three reasons: (1) new issues generally do not get introduced — let alone accepted — on appeal; (2) this is not just any issue; this is a constitutional one; (3) the attorney general could have filed the constitutional challenge in his original case; it is, after all, his case.

So why didn’t Kaul file the constitutional question in his original case? What changed? The Wisconsin supreme court. In August 2023, it flipped to a 4–3 liberal majority. And the newly minted justice publicly unambiguously supported abortion rights in her campaign. The court is now perfectly positioned to make a decision not based on the language or history of the Wisconsin constitution but based on what U.S. Supreme Court justice Byron White termed “raw judicial power” in his dissent in Roe. And Kaul knows this.

Attorney General Kaul is ignoring the U.S. Supreme Court’s decision in Dobbs, which properly returns this issue to the people’s duly elected representatives in the legislative branch. Kaul’s attempt to take this issue from the people of Wisconsin is unjust and unwise, as Roe’s dissent foreshadowed and its legacy of rule by judicial fiat instead of by the people and the political process demonstrates. Now, what Roe did to the country, Kaul wants the Wisconsin supreme court to do to the people of Wisconsin.

While adding a constitutional claim now is procedurally improper, more significantly, the Wisconsin constitution plainly does not grant a right to abortion. Abortion itself is not mentioned in its text. And neither that text nor its history supports such an assertion.

Abortion has been illegal in Wisconsin for its entire 176 years of statehood. It was even illegal in the territory before statehood and when its constitution was adopted in 1848. A year later, the legislature adopted a statute prohibiting most abortions. The early statutes clearly prohibit abortion and make it a crime. It is well-established that Wisconsin courts look to early statutes as a primary source of constitutional interpretation. Until the U.S. Supreme Court in Roe ruled by judicial fiat, the people of Wisconsin had unequivocally governed themselves to protect women and unborn children under Statute 940.04. Nothing Kaul points to contradicts these historical facts.

And even after Roe, Wisconsin passed laws to protect women, young girls, and unborn children from the pain and death that the lucrative abortion industry readily provides. Various post-Roe Wisconsin laws prohibit abortions after viability and prohibit abortions after the unborn child can experience pain. These laws aim to protect the life of every unborn child — each a unique, precious human being — to the extent Roe allowed.

Other laws contain requirements such as a 24-hour waiting period, viewing an ultrasound 24 hours before an abortion, informing women of salient information before an abortion, parental consent before a minor can obtain an abortion, and more. These laws aim to inform and protect women and young girls from the pain and guilt of a decision — many times one made from a place of vulnerability and desperation — to end the life of their unborn child. If the Wisconsin supreme court creates ex nihilo a constitutional right to abortion — whether in this case or another — what are the implications for all these laws?

Kaul’s arguments themselves also fall short. He first argues abortion is rooted in a broader right to liberty but fails to show this in precedent or history. Strike one.

Second, he argues an abortion right is rooted in equal protection. But Wisconsin’s history and precedent do not support this claim. The Wisconsin supreme court has long interpreted Article I, Section 1 — the constitutional provision Kaul purportedly finds this abortion right — “as providing the same equal protection and due process rights afforded by the Fourteenth Amendment to the United States Constitution.” Additionally, the U.S. Supreme Court in Dobbs “squarely foreclosed” any equal-protection based theory to support a so-called right to abortion. Strike two.

How about finding the right to abortion in another part of the Wisconsin constitution? The Wisconsin supreme court said it best in State v. Roberson: “The question for a state court is [not whether it has the power to afford greater protection to citizens under state constitutions, but] whether its state constitution actually affords greater protection. A state court does not have the power to write into its state constitution additional protection that is not supported by its text or historical meaning.” Whether looking at the text or history, there is no support for a right to abortion in the Wisconsin constitution. Strike three.

The text of Wisconsin’s constitution, as well as its history, clearly do not support the right to abortion. In fact, Wisconsin’s law and history show the exact opposite. Time and time again since statehood, the Wisconsin legislature has enacted various laws to protect women and unborn babies. The Wisconsin supreme court should reject Attorney General Kaul’s petition to insert a constitutional question at this late stage for a host of reasons as our respective organizations argued in our motion to intervene in the attorney general’s case. Not the least of which is that abortion has been illegal in Wisconsin since 1846, and it is not — nor has it ever been — a constitutional right.

Christine File is president of Wisconsin Family Action. Heather Weininger is the Executive Director of Wisconsin Right to Life. Dan Miller is state director of ProLife Wisconsin. The organizations are represented by Wisconsin Institute for Law and Liberty and the Thomas More Society.