It is now up to Wisconsin Supreme Court justices to decide the fate of an abortion law from the mid-1800s.
A circuit court determined last year an 1849 law does not apply to "medically consented" abortions in Wisconsin. The high court heard arguments Monday about whether a 1985 state law overrides the older one, allowing abortions before the point at which a fetus could survive outside the womb.
Jenny Higgins, professor of obstetrics and gynecology at the University of Wisconsin-Madison, said while the impact of this case is critically important, even if the 1849 law is determined to be unenforceable, returning to the status quo would mean a dire landscape for abortion access.
"Even though abortion is technically available at clinics in Wisconsin right now, it's heavily restricted," Higgins explained. "Because of insurance and Medicaid prohibitions, people have to pay out-of-pocket for a service that should be covered by insurance."
The 1849 law, which was brought to light after Roe v. Wade was overturned by the U.S. Supreme Court, prompted a statewide freeze on abortion services for more than a year. Higgins noted if Wisconsin's high court rules the law still applies today, the state would be looking at another abortion freeze.
Abortion access disproportionately affects those who are already the most marginalized, Higgins pointed out. She noted while people from all walks of life may find themselves needing abortion care, factors like poverty and racism make it much harder for some to achieve reproductive autonomy, compared to those with more economic and social resources.
"Those effects make it much harder for folks to be able to access contraceptive care, be in relationships that are stable and healthy and communicative, to be able to see past the end of the day into one's future if you are, again, mostly focused on your own economic scarcity or figuring out how to feed your kids, or figuring out how not to get evicted," Higgins outlined.
The 1976 Hyde Amendment, established three years after Roe v. Wade, prohibits the use of federal funds for abortion. Higgins hopes federal lawmakers will focus more on this amendment when considering the barriers to abortion care.
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The 2022 U.S. Supreme Court decision to overturn federal abortion protections continues to be felt.
New research now suggests states where bans have been enacted, including South Dakota, will see fewer workers because of the moves.
The Institute for Women's Policy Research is out with a new study including survey data from 10,000 adults. The authors said one in five respondents planning to have children within the next decade has moved -- or knows someone who has -- to another state because of reproductive care restrictions in their current location.
Melissa Mahoney, senior research economist at the institute, said it shows ban states will likely see some of their workforce talent flow elsewhere.
"The labor markets in states that protect abortion tend to be more welcoming for women with higher wages, greater access to health insurance, also stronger labor force participation," Mahoney outlined.
The findings mirror results from a similar study issued earlier this year by the National Bureau of Economic Research.
After the Dobbs ruling, when conservative states began enacting bans, officials such as former Gov. Kristi Noem pledged their support for pregnant women and children. Some policy analysts argued Noem's record often fell short in that area.
Mahoney pointed out their research indicates it is not just a problem for state policymakers. She noted businesses should also be worried about a "talent drain," with survey respondents wanting them to prioritize care access.
"Many, in addition, are asking more of their employers in terms of reproductive health care benefits, in terms of speaking out against abortion restrictions in their states," Mahoney observed.
According to the findings, 57% of respondents said they are more likely to apply for or accept a job with reproductive health care benefits as part of the offer. And in South Dakota, 65% of adults think employers should provide financial assistance for child care.
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By Rebekah Sager for the Michigan Independent.
Broadcast version by Chrystal Blair for Michigan News Connection reporting for the Michigan Independent-Public News Service Collaboration
The AP reported on Jan. 31 that a grand jury had indicted a doctor in New York on felony charges of criminal abortion for prescribing an abortion medication online for a patient in Louisiana.
The indictment was issued by a grand jury of the Louisiana 18th Judicial District Court for the Parish of West Baton Rouge against Dr. Margaret Carpenter, her New Paltz-based company Nightingale Medical, and the mother of the teen patient, who obtained and administered the medication. Arrest warrants were issued on Jan. 31 for Carpenter and the mother; the mother turned herself in to the police that day.
Louisiana law outlaws abortion completely, with exceptions for the life and health of the pregnant patient.
While 18th Judicial District Attorney Tony Clayton told the AP, "We expect Dr. Carpenter to come to Louisiana and answer to these charges, and if 12 people (a jury) think she's innocent then, let it go," New York's so-called shield law protects Carpenter from extradition, said Rachel Rebouché, the dean of Temple University Law School.
What are shield laws?
Eighteen states, including New York, have laws that protect medical providers from investigation, subpoenas, warrants, and demands for extradition from another state. New York's law says that the governor will not recognize such demands from another state as long as the provider was not physically located in that state when the procedure was carried out.
The law in eight of the 18 states - California, Colorado, Maine, Massachusetts, New York, Rhode Island, Vermont, and Washington - specifically protects reproductive health care, regardless of the patient's location.
What happens when a state's shield law is challenged?
Rebouché, who has worked closely with legislators and shield law advocates, said, "I think the long game is to stop mailed medication abortion, which is approved by the FDA as well."
"I think the consequences are, for the providers, I think there is a chilling effect," Rebouché continued. "No one wants to be indicted for a crime. No one wants to be sued for $100,000 and for Dr Carpenter, she can't go to Texas or Louisiana, she can't go to a state that might extradite her to one of those states."
Rebouché explained that in such cases of interstate conflict, each side has the right to pass its own laws. "Typically, states do cooperate," she said. "That's the baseline. But states have rights to also defend people in their jurisdictions."
"Maggie Carpenter is not breaking the law," Rebouché said. "She is complying entirely with New York law. Now, Texas and New York can disagree about what that means, but she, as a doctor, is not breaking the law. ... Almost half the country has got this through its legislature to protect people who are providing reproductive health care."
On Feb. 3, New York Democratic Gov. Kathy Hochul signed a law that gives doctors who prescribe abortion medication the right to ask that pharmacies only print the name of their medical practice on the prescription label and not the doctor's name.
"The intent of shield laws is to try to deflect attacks from out of state for providers in state through different levels, criminal, civil, professional discipline, insurance hikes," Rebouché said.
Officials in Louisiana continue to insist that they will prosecute Carpenter. "It is illegal to send abortion pills into this State and it's illegal to coerce another into having an abortion. I have said it before and I will say it again: We will hold individuals accountable for breaking the law," Louisiana Attorney General Liz Murrill said on the social media platform X.
Rebouché noted: "Louisiana can and has arrested her for what it claims is a violation of its abortion ban. It has to prove that in a criminal court. ... If Louisiana has prosecutors who are going to go after anybody who's helped somebody, that could have a significant chilling effect."
Rebekah Sager wrote this article for the Michigan Independent.
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By Bram Sable-Smith and Katheryn Houghton for KFF Health News.
Broadcast version by Kathleen Shannon for Big Sky Connection reporting for the KFF Health News-Public News Service Collaboration
In November, Montana voters safeguarded the right to abortion in the state’s constitution. They also elected a new chief justice to the Montana Supreme Court who was endorsed by anti-abortion advocates.
That seeming contradiction is slated to come to a head this year. People on polar sides of the abortion debate are preparing to fight over how far the protection for abortion extends, and the final say will likely come from the seven-person state Supreme Court. With the arrival of new Chief Justice Cory Swanson, who ran as a judicial conservative for the nonpartisan seat and was sworn in Jan. 6, the court now leans more conservative than before the election.
A similar dynamic is at play elsewhere. Abortion rights supporters prevailed on ballot measures in seven of the 10 states where abortion was up for a vote in November. But even with new voter-approved constitutional protections, courts will have to untangle a web of existing state laws on abortion and square them with any new ones legislators approve. The new makeup of supreme courts in several states indicates that the results of the legal fights to come aren’t clear-cut.
Activists have been working to reshape high courts, which in recent years have become the final arbiters of a patchwork of laws regulating abortions. That’s because the 2022 U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization overturned federal abortion protections, leaving rulemaking to the states.
Since then, the politics of state supreme court elections have been “supercharged” as fights around abortion shifted to states’ top courts, according to Douglas Keith, a senior counsel at the nonpartisan Brennan Center for Justice.
“Because we’re human, you can’t scrub these races of any political connotations at all,” said former Montana Supreme Court Justice Jim Nelson. “But it’s getting worse.”
The wave of abortion litigation in state courts has spawned some of the most expensive state supreme court races in history, including more than $42 million spent on the nonpartisan 2023 Supreme Court race in Wisconsin, where abortion access was among the issues facing the court. Janet Protasiewicz won the seat, flipping the balance of the court to a liberal majority.
In many states, judicial elections are nonpartisan but political parties and ideological groups still lobby for candidates. In 2024, abortion surfaced as a top issue in these races.
In Michigan, spending by non-candidate groups alone topped $7.6 million for the two open seats on the state Supreme Court. The Michigan races are officially labeled as nonpartisan, although candidates are nominated by political parties.
An ad for the two candidates backed by Democrats cautioned that “the Michigan state Supreme Court can still take abortion rights away” even after voters added abortion protections to the state constitution in 2022. The ad continued, “Kyra Harris Bolden and Kimberly Thomas are the only Supreme Court candidates who will protect access to abortion.” Both won their races.
Abortion opponent Kelsey Pritchard, director of state public affairs for Susan B. Anthony Pro-Life America, decried the influence of abortion politics on state court elections. “Pro-abortion activists know they cannot win through the legislatures, so they have turned to state courts to override state laws,” Pritchard said.
Some abortion opponents now support changes to the way state supreme courts are selected.
In Missouri, where voters passed a constitutional amendment in November to protect abortion access, the new leader of the state Senate, Cindy O’Laughlin, a Republican, has proposed switching to nonpartisan elections from the state’s current model, in which the governor appoints a judge from a list of three finalists selected by a nonpartisan commission. Although Republicans have held the governor’s mansion since 2017, she pointed to the Missouri Supreme Court’s 4-3 ruling in September that allowed the abortion amendment to remain on the ballot and said courts “have undermined legislative efforts to protect life.”
In a case widely expected to reach the Missouri Supreme Court, the state’s Planned Parenthood clinics are trying to use the passage of the new amendment to strike down Missouri’s abortion restrictions, including a near-total ban. O’Laughlin said her proposal, which would need approval from the legislature and voters, was unlikely to influence that current litigation but would affect future cases.
“A judiciary accountable to the people would provide a fairer venue for addressing legal challenges to pro-life laws,” she said.
Nonpartisan judicial elections can buck broader electoral trends. In Michigan, for example, voters elected both Supreme Court candidates nominated by Democrats last year even as Donald Trump won the state and Republicans regained control of the state House.
In Kentucky’s nonpartisan race, Judge Pamela Goodwine, who was endorsed by Democratic Gov. Andy Beshear, outperformed her opponent even in counties that went for Trump, who won the state. She’ll be serving on the bench as a woman’s challenge to the state’s two abortion bans makes its way through state courts.
Partisan judicial elections, however, tend to track with other partisan election results, according to Keith of the Brennan Center. So some state legislatures have sought to turn nonpartisan state supreme court elections into fully partisan affairs.
In Ohio, Republicans have won every state Supreme Court seat since lawmakers passed a bill in 2021 requiring party affiliation to appear on the ballot for those races. That includes three seats up for grabs in November that solidified the Republican majority on the court from 4-3 to 6-1.
“These justices who got elected in 2024 have been pretty open about being anti-abortion,” said Jessie Hill, an attorney with the American Civil Liberties Union of Ohio, who has been litigating a challenge to Ohio’s abortion restrictions since voters added protections to the state constitution in 2023.
Until the recent ballot measure vote in Montana, the only obstacle blocking Republican-passed abortion restrictions from taking effect had been a 25-year-old decision that determined Montana’s right to privacy extends to abortion.
Nelson, the former justice who was the lead author of the decision, said the court has since gradually leaned more conservative. He noted the state’s other incoming justice, Katherine Bidegaray, was backed by abortion rights advocates.
“The dynamic of the court is going to change,” Nelson said after the election. “But the chief justice has one vote, just like everybody else.”
Swanson, Montana’s new chief justice, had said throughout his campaign that he’ll make decisions case by case. He also rebuked his opponent, Jerry Lynch, for saying he’d respect the court’s ruling that protected abortion. Swanson called such statements a signal to liberal groups.
At least eight cases are pending in Montana courts challenging state laws to restrict abortion access. Martha Fuller, president and CEO of Planned Parenthood Advocates of Montana, said that the new constitutional language, which takes effect in July, could further strengthen those cases but that the court’s election outcome leaves room for uncertainty.
The state’s two outgoing justices had past ties to the Democratic Party. Fuller said they also consistently supported abortion as a right to privacy. “One of those folks is replaced by somebody who we don’t know will uphold that,” she said. “There will be this period where we’re trying to see where the different justices fall on these issues.”
Those cases likely won’t end the abortion debate in Montana.
As of the legislative session’s start in early January, Republican lawmakers, who have for years called the state Supreme Court liberal, had already proposed eight bills regarding abortion and dozens of others aimed at reshaping judicial power. Among them is a bill to make judicial elections partisan.
Montana Sen. Daniel Emrich, a Republican who requested a bill titled “Prohibit dismembering of person and provide definition of human,” said it’s too early to know which restrictions anti-abortion lawmakers will push hardest.
Ultimately, he said, any new proposed restrictions and the implications of the constitutional amendment will likely land in front of the state Supreme Court.
Bram Sable-Smith and Katheryn Houghton wrote this story for KFF Health News.
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