The answer to the question posed in the headline of this story is: nothing. Which makes it a lot like a story and headline One Wisconsin Now posted about the nomination of Judge Brett Kavanaugh to the U.S. Supreme Court.
Behind this click bait is, with all due apologies to William Shakespeare, sound and fury, signifying absolutely nothing. Here is the brief text:
MADISON, Wis. — One Wisconsin Now Program Director Analiese Eicher released the following statements about Donald Trump nominating Brett Kavanaugh to the Supreme Court.
“If he is not blocked, Brett Kavanaugh will be the deciding vote to overturn Roe v. Wade and do what Scott Walker has been trying to do for 25 years: criminalize women having abortions.”
Nowhere does the “story” substantiate the headline of women being imprisoned for having abortions. Overturning Roe v. Wade, the landmark 1973 Supreme Court decision which legalized abortion nationwide, would not imprison women. It wouldn’t even outlaw abortion across the country. It would return the issue to the state level. Some states, including Wisconsin, have laws banning abortion on the books that would become active were Roe overturned. Here is a summary of Wisconsin law on abortion, from the Legislative Reference Bureau:
Law Prohibiting All Abortions Ruled Unconstitutional. The Roe v. Wade decision rendered
unenforceable the criminal penalties in Section 940.04 (1), Wisconsin Statutes, which provides that “Any
person, other than the mother, (emphasis ours)who intentionally destroys the life of an unborn child is guilty of a Class H felony.”
The penalty prescribed for a Class H felony is a fine not to exceed $10,000 or imprisonment
not to exceed six years, or both. The law defines an “unborn child” as “a human being from the time
of conception until it is born alive” (§ 940.04 (6), Wis. Stats.). It exempts an abortion performed by a
physician if necessary, or advised by two other physicians as necessary, to save the life of the mother, but
does not provide an exception for cases in which the pregnancy is the result of “rape” (sexual assault),
incest, or other reasons relating to the physical or mental health of the mother.
Lawmakers further protected women who seek abortions from prosecution in 1985:
Abortion Exception for Women. Section 940.13, Wisconsin Statutes, which was created by 1985
Wisconsin Act 56, provides that no fine or imprisonment may be imposed or enforced against, and
no prosecution may be brought against, a woman who obtains an abortion or otherwise violates any
provision of any abortion statute with respect to her unborn child or fetus. In addition, Section 253.107
(3) (b), Wisconsin Statutes, exempts a woman from any penalty if an abortion is performed or induced
upon her in cases in which an unborn child is considered to be capable of feeling pain from an abortion.
A U.S. Supreme Court reversal on Roe V. Wade would not change Wisconsin law concerning women who seek abortions. Further, while a 5-4 conservative majority would increase the likelihood of the court reversing Roe, a reversal is far from certain. The court would have to agree to hear a case that directly challenges the central holding of Roe V. Wade: the constitutional right to privacy.
And some court observers believe, based on previous rulings, that Chief Justice John Roberts may be reluctant to reverse Roe V. Wade. Roberts joined the four liberal justices and Justice Anthony Kennedy in upholding the constitutionality of the Affordable Care Act and was a dissenter in the ruling legalizing gay marriage. Vox did an extensive analysis on the difficulties one encounters when attempting to predict how Roberts might rule on overturning Roe V. Wade.
Further, other observers suggest overturning Roe could be Republican lawmakers worst nightmare:
The prospect of criminal abortion in the United States may also light a fire under younger generations of Americans who, in consequence of what has been called “the luxury of legality,” have become rather complacent about reproductive freedoms. For over 40 years, abortion and contraception have been legally available, so, like, that can’t change, right? Women of reproductive age may be about to discover the answer might be yes — and this could energize them to elect more Democrats who will support reproductive rights.
If Roe is overturned and the abortion issue returned to the states, it remains to be seen if Republican lawmakers will have the political courage to pass or uphold laws making illegal a right that has existed for 45 years. In any event, the end of Roe isn’t imminent and women in Wisconsin won’t be at risk of going to prison if it happens.