4.25.24

The News: The Wisconsin Institute for Law & Liberty (WILL) has filed a response to a case brought by Planned Parenthood seeking an original action ruling from the Supreme Court of Wisconsin (SCoW) that would create a constitutional right to an abortion in Wisconsin. WILL believes ruling in favor of Planned Parenthood would embroil SCoW in the same mess of policy questions that Roe v. Wade created.  

As WILL has stated before, Wisconsin’s duly elected legislature and governor should go through the normal legislative process and create policy to govern abortion.  

The Quotes: WILL Deputy Counsel, Luke Berg, stated, “There is no right to an abortion in Wisconsin’s Constitution. No judge, justice, or lawyer should be creating policy for Wisconsinites out of thin air. Reversing Roe v. Wade through the Dobbs decision rightfully placed the abortion issue back where it should have been all along—in the halls of state legislatures. That’s where the debate and conversation must remain.”  

Where Would the Court Draw the Line? If the Wisconsin Supreme Court were to agree with Planned Parenthood, what would happen next? For example, would the prohibitions on abortions after viability, Wis. Stat. § 940.15, or after the unborn child can experience pain (defined in the statute as 20 weeks), Wis. Stat. § 253.107, also be unconstitutional? How about partial-birth abortions, very late term abortions? None of those prohibitions are challenged or at issue in this case, but if this Court constitutionalizes abortion, it will have to answer these questions sooner or later.  

Does it reimpose Roe’s now-jettisoned “viability” line, which “has not found much support among philosophers and ethicists,” which “other countries almost uniformly eschew,” and which raises a host of other questions, such as what “probability of survival” counts as “viable”? Dobbs, 597 U.S. at 274–78.  

Or does this Court impose some other arbitrary line, and if so, what line?  A fetal heartbeat (weeks 5–6)?  Brain activity (weeks 6–7)? Movement in the womb (8 weeks)? Organ function (week 10)? Facial expressions (weeks 10–12)?  

Again, addressing this litany of questions should be reserved to the legislative process and a transparent debate from the state’s elected policy makers.    

The Politics of Roe v. Wade: Roe v. Wade politicized the United States Supreme Court more than any other decision of that Court, and it generated an intense backlash that lasted for decades. This has been documented by numerous writers and Court-observers on both sides of the political aisle. Wisconsin’s Supreme Court should not replicate that sequence of events.   

Proposed Opposition to Petition for Original Action, April 2024