Roe v. Wade created a constitutional protection for abortions. What happens with Wisconsin criminal law now that it is no longer valid?
Roe v. Wade, 410 U.S. 113 (1973), was a landmark decision of the United States Supreme Court (SCOTUS) in which the Court ruled that the Constitution of the United States generally protects a pregnant woman’s liberty to choose to have an abortion. On January 22, 1973, the Supreme Court issued a 7–2 decision holding that the Due Process Clause of the Fourteenth Amendment to the United States Constitution provides a fundamental “right to privacy,” which protects a pregnant woman’s right to an abortion.
For nearly 50 years throughout the United States, Roe v. Wade protected a woman’s right to choose to have an abortion. In a decision issued June 24, 2022, SCOTUS eliminated that right on a federal level. SCOTUS overruled Roe, which the majority opinion described as “egregiously wrong,” in Dobbs v. Jackson Women’s Health Organization on the grounds that the U.S. Constitution makes no reference to abortion and was unknown in U.S. law until Roe.
Finally, it’s important to note that our law firm takes no position on whether abortion is right or wrong. Instead, we believe in defending and fighting for the rights of everyone accused of committing a crime. Additionally, we oppose over-criminalization and laws designed to control and incarcerate. If you’re accused of committing any crime, including abortion, contact our law firm immediately at (414) 270-0202.
Roe v. Wade – the facts leading up to the case
Norma McCorvey – known by legal pseudonym “Jane Roe” – was a single woman who resided in Dallas County, Texas. She instituted a federal action in March 1970 against the Dallas County District Attorney. That action sought a declaratory judgment that the Texas criminal abortion statutes were facially unconstitutional. She requested an injunction restraining the State from enforcing the law against her.
Roe was single and pregnant. She wished to terminate her pregnancy by an abortion. She located a “competent, licensed physician” who would undertake the procedure in safe, clinical conditions. Unfortunately, Roe was unable to get a legal abortion in Texas because her life was not threatened by the continuation of her pregnancy and she could not afford to travel to another state to secure a legal abortion under safe conditions.
The parties and issues in Roe v. Wade
Roe claimed that the Texas statutes were unconstitutionally vague and that they abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments. By an amendment to her complaint, Roe purported to sue “on behalf of herself and all other women” similarly situated.
James H. Hallford, a physician-intervenor on behalf of Roe (who joined the lawsuit) described conditions of patients who came to him seeking abortions. He claimed that for many cases he, as a physician, was unable to determine whether they fell within or outside the exception recognized by Article 1196 (the exception allowing for abortions in the case where the mother’s life will be saved). He alleged that, as a consequence, the statutes were vague and uncertain, in violation of the Fourteenth Amendment, and that they violated his own and his patients’ rights to privacy in the doctor-patient relationship and his own right to practice medicine, rights he claimed were guaranteed by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.
Roe v. Wade Decision
Roe v. Wade introduced the concept of a constitutional “right to privacy” that it said had been intimated in its earlier decisions Meyer v. Nebraska and Pierce v. Society of Sisters, which involved parental control over childrearing, and Griswold v. Connecticut, which involved the use of contraception. Moving forward, the Court ruled that regardless of which provisions (the 14th Amendment or the 9th Amendment) were involved, the U.S. Constitution’s guarantees of liberty covered a specific right to privacy, which included a pregnant woman’s decision whether to abort that pregnancy.
Outlawing abortions would infringe on pregnant women in several ways: having unwanted children “may force upon the woman a distressful life and future,” it may cause imminent psychological harm, caring for children may tax the mother’s physical and mental health, and there may be “distress, for all concerned, associated with the unwanted child.”
The Court rejected that the notion of privacy was absolute, holding instead that the right to abortion must be balanced against other government interests, such as protecting maternal health and protecting the life of the fetus. Importantly, the Court held that these interests were enough to justify some state-limitations on a pregnant woman’s right to have an abortion.
The State’s argument:
Texas lawyers attempted to justify the previous law: life began at the moment of conception, and therefore invoked the state’s interest in protecting prenatal life, and therefore any abortion at any point could be regulated. The Court’s response was simple: the Constitution’s use of the word “person” didn’t clearly refer to fetuses. The Court went on to reject Texas’ argument that a fetus should be considered a “person” with a legal and constitutional right to life, but recognized plenty of disagreement regarding this subject.
In order to balance a woman’s right to privacy and state governments’ interests in protecting mother and prenatal life, the Court created the trimester framework. In the first trimester, when it was believed that the procedure was safer than childbirth, the Court ruled that a state government could place no restrictions on women’s ability to choose to abort pregnancies (other than certain medical safeguards, like requiring abortions be performed by licensed physicians). The second trimester on includes increased risks to the mother’s health, and therefore allowed the government to enact reasonable and “narrowly-tailored” laws to protect the mother’s health and limit abortions. At the point of the third semester on, from the point when fetuses become viable, the Court found the state’s interest was so compelling that it could legally prohibit all abortions, except those necessary to protect the mother’s life.
Having completed its analysis, the Court concluded that Texas’s abortion statutes were unconstitutional and struck them down. Roe v. Wade guided laws throughout the country, until June 2022 and the court’s decision in Dobbs v. Jackson Women’s Health Organizations:
Dobbs v. Jackson Women’s Health Organization
Dobbs v. Jackson Women’s Health Organization, No. 19-1392, 597 U.S. ___ (2022), is a landmark decision of the U.S. Supreme Court in which the Court held that the Constitution of the United States does not confer any right to abortion, and overruled both Roe v. Wade and Planned Parenthood v. Casey (1992).
In March 2018, the Mississippi Legislature passed the Gestational Age Act, which banned any abortion after the first 15 weeks of pregnancy, with exceptions for medical emergency or severe fetal abnormality. Pregnancies resulting from rape or incest do not qualify under the law.
The legislature justified the law on the basis that elective and nontherapeutic abortions were “a barbaric practice, dangerous to the maternal patient, and demeaning to the medical profession.” The legislature failed to adhere to the principles instituted in Roe.
The next day, Mississippi’s only abortion clinic, Jackson Women’s Health Organization, sued various state officials, initiating the lawsuit. Trial and appellate courts found against the law and issued an injunction against it.
On May 2, 2022, Politico leaked a draft opinion of the Dobbs decision, prompting significant outcry from the public. The final decision, decided June 24, 2022, did not change significantly.
The majority opinion, written by Justice Samuel Alito, relied on a constitutional view of abortion rights. The opinion points out that the Constitution never references abortion. The decision moves on and states that no right is implicitly protected by any constitutional provision. This argument is based on the criteria from Washington v. Glucksberg—that a right must be “deeply rooted in the Nation’s history.” Alito focused on the fact that until the latter part of the 20th century, such a right was not a part of American law. Some historians argued that this view is incomplete, and in the view of Leslie J. Reagan, a professor of history and law at the University of Illinois, Alito “speciously claims” the truth of his assertions.
Alito claimed that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”
He argued that the right to abortion is different from other privacy rights. “What sharply distinguishes the abortion right from the rights recognized in the cases on which Roe and Casey rely is something that both those decisions acknowledged: Abortion destroys what those decisions call ‘potential life’ and what the law at issue in this case regards as the life of an ‘unborn human being.'”
Impact of Dobbs V. Jackson Women’s Health Organization
This decision certainly does not automatically make abortion illegal in all 50 states. What it does, instead, is to remove federal abortion guidelines established in Roe. This allows states, on their own, to determine the legality of the issue.
In Wisconsin, Governor Tony Evers vowed to grant clemency to any physician charged under Wisconsin’s abortion statute. As you’ll recall, due to checks and balances in government, changing Wisconsin’s laws requires that the legislature create or change laws. And due to the fact that this issue is developing consistent with party lines, that will not happen in Wisconsin’s current political environment.
But what does Wisconsin’s law say?
Section 940.04 of the Wisconsin Statutes prohibits abortion. The law says:
(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.
What becomes immediately clear is that Wisconsin’s laws do not punish the mother. Instead, criminal liability focuses on physicians who perform the procedures. A quick child refers to a fetus, with a beating heart, able to move around within the womb of the mother. A quick child develops between the end of the first trimester and the middle of the second trimester of birth.
Wisconsin law does not allow for abortion in cases of sexual assault or incest.
Finally, contact Van Severen Law Office, S.C. if you face abortion charges
SCOTUS overruled Roe v. Wade less than a week ago, significantly changing what’s been the law for decades. The fallout is certainly still settling, including figuring out how criminal prosecutions in Wisconsin will work. And while Governor Evers’ statement on clemency is helpful in determining the future, our state remains in political deadlock. Our lawmakers’ next steps are important, and it’s unclear where they’ll move.
The criminal defense attorneys at Van Severen Law Office focus an appreciable amount of time on complex areas of law. This includes areas that are still developing, such as abortion law in Wisconsin. No matter how complex your situation is, we can certainly help.
Finally, if you face charges for abortion, don’t hesitate to contact us. We offer free consultations to all potential clients, allowing you to come in and talk about your case for an hour. Certainly contact us immediately at (414) 270-0202 to speak with an attorney and to schedule that consultation.