With the fall of Roe v. Wade, Wisconsin slips back to 173-year-old abortion ban

Story Transcript

Dr. Kristin Lyerly says she has patients who need abortions — but thanks to a more than century-old Wisconsin state law, there's nothing she can do to help them.

"It's terrible," Lyerly told As It Happens guest host Ginella Massa. "Imagine sitting in an exam room with your doctor and you are explaining a very personal problem that is affecting every aspect of your life. And your doctor looks you in the eye and says, 'I know how to help you, but I can't because the politicians in our state won't let me.'"

After the U.S. Supreme Court struck down Roe v. Wade on Friday, Wisconsin reverted to a 173-year-old abortion ban.

Legal experts are divided about whether the law is enforceable after all these years, but health-care providers aren't taking any chances. As of Friday, no clinics are offering abortions in Wisconsin. 

"Right now, we're taking this very seriously because we have to," Lyerly said. 

"Our hope is that the attorney general will have some tricks up his sleeve that will allow us to acknowledge the age of the law and recognize that it doesn't apply. An 1849 law that was written in the year that the first American woman became a physician is not relevant in 2022."

Governor vows not to enforce

The Wisconsin law makes performing an abortion a felony punishable by up to six years in prison or a $10,000 US fine. 

When Roe v. Wade was decided in 1973, the landmark case enshrined abortion as a constitutional right in the U.S., invalidating the Wisconsin ban in the process.

Now, with Roe gone, the once-dormant ban is once again the law of the land — but it's unclear whether it will stand. 

The nonpartisan Wisconsin Legislative Council, which is comprised of attorneys who advise the state legislature, indicated in a memo that the enforceability of the state ban will likely have to be decided by a judge.

"All of this is going to have tons of litigation," Sara Benesh, chairwoman of UW-Milwaukee's political science department, told The Associated Press. "It's going to be a disaster [for people with unwanted pregnancies]  as we figure this out."

Gov. Tony Evers, a Democrat, attempted to appeal the law last week before Roe fell, but the Republican-controlled state legislature blocked his efforts.

Attorney General Josh Kaul, also a Democrat, said Friday he is reviewing the U.S. Supreme Court ruling and would have more information this week about how he plans to proceed. He did not respond to a request for comment from As It Happens on Monday.

But Kaul has previously indicated that he believes the law cannot be enforced, citing a legal theory known as the desuetude doctrine, which allows statutes that haven't been enforced over a period of time to lapse.

Evers, meanwhile, has vowed not to appoint district attorneys who would enforce the ban, and says he will waive prison sentences for anyone convicted under it. 

But Lyerly but says that's not enough. After all, Evers is up for re-election in November. And Republicans in the state are celebrating the fall of Roe.

"Safeguarding the lives of unborn children shouldn't be controversial," Robin Vos, Speaker for the Wisconsin State Assembly said on Twitter Friday. "Today's decision reaffirms their lives are precious and worthy of protection."

'Abortion is health care'

In the meantime, Wisconsin abortion patients and providers are in a tough spot. Kathy King, the medical director of Planned Parenthood Wisconsin, says nearly 70 patients had abortions cancelled over the weekend — including some who were at clinics on Friday morning awaiting the procedure. 

Lyerly, who contracts with Planned Parenthood, has turned her efforts to providing telemedicine abortions to patients in neighbouring states where the procedure remains legal.

But she's especially worried about Wisconsin patients who require abortions for emergency medical reasons. 

While the 1849 law allows abortion when it's necessary to save the pregnant patient's life, it stipulates the decision must be signed off on by two additional physicians.

"How do you find three physicians to come together and make a decision about this life-threatening condition during a time when, if it's truly life-threatening, the patient could die in the process?" Lyerly said.

"I took an oath to take care of my patients, to listen to them, and to help them determine what the best course of action is within the context of their lives. And sometimes we just don't have a lot of time to bring in other people just because politicians require it. Abortion is health care. Abortion is not political."

Lyerly is a legislative chair for the American College of Obstetricians and Gynecologists, one of several medical associations that have issued statements in support of abortion access since Friday.

Others include the American Academy of Pediatrics, the American Medical Association, the New England Journal of Medicine, the California Medical Association, the International Federation of Gynecology and Obstetrics and the United Nations' sexual and reproductive health agency.

Written by Sheena Goodyear with files from The Associated Press. Interview with Kristin Lyerly produced by Kate McGillivray.