Wisconsin faced with a tangled series' of abortion laws dating to 1849 as it heads into a possible post-Roe future.

Byline: Bridgetower Media Newswires

By Phoebe Petrovic

Wisconsin Watch and WPR

About 50 abortion rights supporters stood on the bridge over the Wisconsin River into Sauk City on a sunny Saturday morning in mid-May.

They held signs reading "CHOICE" and "PROTECT ROE v. WADE" and cheered when passing cars honked in support.

Jennie Klecker brought three generations of her family out on the bridge for the demonstration: her mother and her daughter and niece, in the sixth and ninth grades.

"I'm here for them," she says, gesturing to the girls. "They shouldn't be forced to be mothers. These are human rights."

A local group, Indivisible Sauk Prairie, organized the bridge demonstration. Across the state and country that Saturday, thousands gathered to protest in anticipation of the U.S. Supreme Court decision in Dobbs v. Jackson Women's Health Organization that is expected to overturn the 49-year-old precedent guaranteeing a constitutional right to an abortion.

In Sauk City, a lone counter-protester wore a MAGA hat, yelled vulgarities and marched through the crowd. A woman stood across the street holding a large sign declaring: "70 PERCENT: ROE V WADE."

Cousins Presley Bonin, left, and Natalie Klecker, right, attend an abortion rights protest on the bridge over the Wisconsin River at Sauk City, Wis.on May 14, 2022, organized by Indivisible Sauk Prairie. "I believe that no person should be able to make the decision on someone else's body, and everyone should be allowed to make their own decision with their own free will," Bonin says. (Phoebe Petrovic / Wisconsin Watch)

Her sign reflected the sentiment from a recent Marquette University Law School poll, which found 69% of people nationwide oppose overturning the landmark decision. A Marquette poll from last year found 61% of Wisconsin residents support the right to an abortion "in all or most cases."

While the Supreme Court's final decision seems nearly certain to reverse federal protections for abortion rights, its impact on Wisconsin is far from clear. Observers agree that the state will see a legal battle over whether Wisconsin reverts back to a law from 1849 a near-total ban on abortion passed 71 years before women had the right to vote.

That law makes it a Class H felony for anyone other than the mother to "intentionally (destroy) the life of an unborn child." The maximum penalty is six years in prison and a $10,000 fine. The law provides an apparent exception for medically necessary abortions referred to by an antiquated term "therapeutic abortion" to "save the life of the mother."

But what would constitute a legally allowable abortion? That is a daunting question for physicians across Wisconsin not just those who specialize in providing abortion care as they could soon face criminal prosecution for providing what they believe is a life-saving procedure.

"That uncertainty alone is going to likely severely limit, if not completely cut off, all abortion access in Wisconsin," says Dr. Abigail Cutler, an obstetrician and gynecologist who practices in Wisconsin.

The Wisconsin Hospital Association did not respond to email and phone messages asking how overturning Roe would affect patients' ability to get medically necessary abortions at hospitals.

Related story: Are abortions ever medically necessary? Wisconsin doctors say yes.

In an interview, Attorney General Josh Kaul says the 173-year-old abortion ban may be unenforceable under a legal doctrine called desuetude, which holds that a long-unenforced law essentially becomes invalid. Kaul has vowed not to enforce that "draconian" law if Roe falls.

Wisconsin has multiple abortion laws passed after the 1973 Roe decision that acknowledged federal abortion rights, including several passed under former Republican Gov. Scott Walker. One could make an argument, Kaul says, that these statutes which are currently enforced, as opposed to the 19th century ban could imply that the...

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