parties on opposite sides of whether abortion is legal in Wisconsin want this
state supreme court to settle the question even as abortions are now being
performed in the state after a Dane County court ruled last summer that a
174-year-old law on the books does not use the term abortion and only
prohibits attacking a woman in an attempt to kill her unborn child.
Sheboygan County District Attorney Joel Ermansky had appealed that ruling and
argues the 1849 statute does indeed prohibit performing abortions except
to save the life of the mother. He now wants to bypass the appeals court and
allow the high court to consider the matter. Likewise Wisconsin Attorney
General Josh Cole wants the case to go directly up to avoid prolonging harm he
says caused by the confusion in Wisconsin law that existed following
Dobbs. Cole will argue in favor of the Dane County ruling and that the state
constitution protects women's rights over their bodies. For more on this we
turn to a meritist professor of political science and affiliate faculty
member at the UW Law School Howard Schwaiber and thanks very much for being
here. Thanks for having me. So how gnarly of a case is this for the Supreme Court
to unpack or are the issues clear-cut? It is as gnarly as they want it to be it's
worth pointing out the 1849 law is not the only law issue there's a 1985 law
that says after 22 weeks abortions are permitted only where the life or
health of the woman is at risk and there are a series actually of other lesser
known laws I think. There's a 2015 law that effectively makes that limit 20
weeks. There's an informed consent law. There's 25 hour delay law. In 2019 there
were no fewer than five bills passed out of the legislature to restrict
abortion. So this is a live issue for which Governor Ebert is vetoed. This is a
very live issue and it's not just the question of our abortions allowed or up
until what point there's a whole series of laws that could be at stake in a
ruling by this court. The court has of course a new majority regarding his
liberal which is assumed to be more friendly to abortion rights but for both
sides it is useful to get clear answers. I think for the pro-life side it would
be useful partly of course just to know what the rules are but partly also to
use this as a mobilizing issue in 2025. Excuse me when Justice Bradley will
come up for reelection and in the 2024 campaign previously the abortion issue
has benefited Democrats. I think there's a feeling on the part of some Republicans
that can be turned around if voters think that the pendulum is swinging too far
in the other direction. Conversely of course pro-choice advocates would like
to see this court strongly rule in favor of abortion rights and settle these
issues once and for all. I have to say I think the most likely outcome is one
that will perfectly satisfy neither side which is something to the effect of
saying that the 1985 law is valid and remains in force and in that way
avoiding the question of the 1849 law altogether by simply saying if it if it
did apply to abortion it's been superseded. That would be the easy
efficient solution and frankly it's the one I'm hoping the court will take. Well
I was going to ask her about that because my reading of the call petition to bypass
says if the Dane County ruling doesn't hold he will also argue that the modern
abortion laws supersede the 1849 law and so you think the call case stacks up
pretty well there. It certainly gives the court an easy
solution. One that is not politically extreme or
legally extreme. The Wisconsin Constitution certainly permits the
1985 statute unless we re-interpret in a really
fairly dramatic way. So I think it stacks up legally and it stacks up
politically in a way that I think would serve this court's interests
very well and frankly I think would serve the interests of the people
of Wisconsin reasonably well. Keeping in mind that Wisconsin is a genuinely
divided state on this issue as on so many others. So
Cole also argues that the Wisconsin Constitution protects a woman's
right to control her body freedom over the direction of her life
and equal protection under the law. Wouldn't the other side argue that there's a
constitutional protection of an unborn child?
Well not exactly. So a constitutional protection of a right to life
applies to the state. The government can't take your life
away. That doesn't mean that the government has to protect you
against a private person. And of course we have laws against murder
but there's no constitutional requirement that there be a law for
example against let's say a vehicle or homicide. Of course we want those laws
but they're not constitutionally required. So the other side's argument is
really strong if it tries to work from the idea of
fetuses having rights. The strong argument is something that there's a
sufficiently important and sufficiently powerful legislative
interested stake here to override whatever rights claims are asserted.
Of course no rights are absolute whether it's a free speech right
or a right to abortion or anything else. Any assertion of a right can be
overcome by a sufficiently strong societal interest.
And so that's the question what is the scope of this right
and then once that right is defined what is the scope of the
government's legitimate interest despite the existence of a constitutional
rights guarantee. So once the US Supreme Court threw the
issue of abortion back to the states are there any other states in this
situation like Wisconsin litigating over a 174-year-old law?
I'm not aware of any other state in this specific
situation although there are a number of states that have
what were called trigger laws. Laws that were on the books but unenforceable
while well wasn't forced that immediately came into effect when the
Dobbs decision came down. Certainly lots of states are wrestling with this
question. You know the most disingenuous part
of the Dobbs opinion frankly was when the majority said
that the decision will turn this question back to the state legislators.
Of course what it's done is turn the question back to state courts
and that's what we're seeing play out with Wisconsin
and as you as you say elsewhere as well. All right Howard Schwaiber thanks very
much. My pleasure.
That was awesome I loved how you combined the political realities of this with
the law. Thank you. My pleasure. Have a good day. You too.