Wisconsin Gov. Tony Evers (D) has vetoed four anti-choice measures during his first year in office, but pro-choice advocates say there are a few more ways the governor could use his administrative authority to make state policy less hostile to abortion.
Advocates emphasize that Evers, who beat former Gov. Scott Walker (R) in November 2018, can’t singlehandedly undo years of restrictions that have even survived past Democratic legislative majorities in Wisconsin, such as the state’s forced 24-hour waiting period, mandatory fetal ultrasound, parental consent requirement, and mandated misinformation given to abortion patients. State Republicans have also prohibited public workers’ health insurance policies and plans offered on the state’s health exchange from covering abortion except in rare circumstances.
Sweeping changes to Wisconsin’s abortion restrictions would require legislative action, which is unlikely for now: Republicans hold solid majorities in the state senate and assembly, even though Democratic candidates received more votes in the 2018 midterm elections.
Megan Jeyifo, who had an abortion in Wisconsin as a teenager, told Rewire.News that these restrictions make getting an abortion in the state a “two- or three-day ordeal,” depending on the patient’s distance from the clinic and their access to transportation. Her own abortion was complicated by the state’s forced waiting period requirements and a lack of support from the people around her. Since Jeyifo’s abortion in 1999, many restrictions remain and some have been added, including a 20-week ban.
“All of the restrictions—both logistical and financial—work together to make abortion inaccessible, especially for marginalized folks,” said Emma Carpenter, a PhD candidate at the University of Wisconsin-Madison who researches abortion access.
Along with active anti-choice policies, there’s also the state’s unenforceable 1849 law criminalizing abortion, which could make abortion illegal if Roe v. Wade were to fall.
Still, there are areas where Evers could make changes.
Wisconsin law allows the state Medicaid program to cover abortion services in narrow cases—rape, suicide, life endangerment, or when continuing the pregnancy would cause “grave and long-lasting physical damage.” But Annie Laurie Gaylor, an administrator of the Wisconsin-based Women’s Medical Fund, said even abortions that should qualify are rarely covered, in her experience. A state Department of Health Services spokesperson told Rewire.News that between 2014 and 2018, the state’s BadgerCare Plus program covered between nine and 15 abortions per year.
Gaylor suggested the governor could do more to make sure the state Medicaid program was approving abortion coverage in cases the law permits, though there’s some disagreement as to whether Evers could unilaterally take action on this front. Iris Riis, a spokesperson for Planned Parenthood of Wisconsin, told Rewire.News that because of how narrow the exceptions are, it was up to the state legislature to address it.
Pro-choice advocates have also pushed Evers to stop enforcing the so-called Unborn Child Protection Act, a law that allows the state to detain a pregnant person accused of alcohol or drug use, appoint an attorney for the embryo or fetus, and force the person into drug treatment or jail.
When asked about steps the administration was taking on abortion, Evers’ office pointed Rewire.News to the bills he vetoed earlier this year.
Using Administrative Power to Fight Misinformation
In Wisconsin, abortion providers are required to give patients written materials from the Department of Health Services, but the law does not determine the text of the “A Woman’s Right to Know” pamphlet, leaving that to the agency. Advocates say Evers could direct the agency to revise its materials to more accurately reflect the facts of abortion care.
A team of Rutgers University researchers consulted embryological and fetal development experts to evaluate state informed consent materials from 2013. When they examined the Wisconsin pamphlet, they found 17 percent of statements in it were incorrect or misleading, including 29 percent of statements related to the first trimester.
There are limits to what Evers can change on his own. Wisconsin law spells out a lengthy list of information that must be shared with a patient, according to a 2015 analysis by the Wisconsin Legislative Reference Bureau. By law, the pamphlet must include pictures to illustrate the “probably anatomical and physiological characteristics” of the fetus at different gestational stages, and it must describe the “medical and psychological risks associated with” abortion.
“The information that the state requires to be relayed is medically inaccurate, misleading, deceptive, and meant to persuade patients not to have abortions,” Carpenter told Rewire.News in an email.
But the agency could correct many of the inaccurate details about fetal development, and it could add statements clarifying how rare the possible medical complications are. It could also eliminate the pamphlet’s medically unsupported claims about “fetal pain,” which, as the Guttmacher Institute notes, are not required by state law.
Striking Down Anti-Choice Policies
Last spring, Wisconsin Republicans passed a series of anti-choice bills, including a ban on so-called selective abortions, based on racist and ableist myths; a ban on abortion providers participating in Medicaid; a “born alive” bill conflating abortion care with infanticide; and a bill to mandate misinformation on abortion “reversal,” an unproven concept pushed by abortion rights opponents.
Evers vetoed all four bills. In the veto messages, the governor said he objects “to the political interference between patients and their healthcare providers” and to the “restriction on women’s access to basic reproductive healthcare.”
With the Evers veto serving as a check on anti-choice laws and other Republican priorities, state assembly leadership has moved to strengthen their ability to override the governor’s veto power. After stalling for months on a rule change to accommodate a disabled state legislator, Rep. Jimmy Anderson (D-Fitchburg), GOP legislators combined the change with a provision that would allow the state assembly to vote multiple times to override an Evers veto. In a floor speech this month, Anderson criticized his Republican colleagues for tying his accommodations to a provision that could strengthen the party’s power to undermine Evers.
“I want people to understand how small and petty it is that the majority is forcing me to vote against my own disability accommodation,” he said.
Ultimately, the rule changes passed on a party-line vote, with Anderson and the rest of his Democratic colleagues voting against it, the Wisconsin State Journal reported.
Prioritizing Abortion Rights
Evers could push state Democratic lawmakers to focus on loosening anti-choice restrictions if they ever gain more seats while Evers is in office. When Wisconsin Democrats controlled the assembly, state senate, and governor’s office in 2009 and 2010, they failed to introduce a measure to repeal the state’s archaic abortion ban. State Rep. Lisa Subeck (D-Madison), the author of the decriminalization bill now in the state assembly, told Rewire.News that past Democratic majorities were not solidly pro-choice. She said the threat to Roe did not seem as acute then as it does today.
“I think it’s easy to become complacent when you don’t feel the threat,” she said.
The criminal abortion statute dates back to 1849, the year after Wisconsin gained statehood, when medicine was radically different. While unconstitutional provisions staying on the books isn’t uncommon, the rightward shift of the U.S. Supreme Court has raised the possibly Roe v. Wade will be struck down or gutted, meaning punitive bans like Wisconsin’s are one judicial ruling away from going into effect.
State Sen. Fred Risser (D-Madison), the longest-serving legislator in the country, has repeatedly introduced bills to remove the outdated abortion statute. Risser said the bills have rarely even received a hearing.
Risser pushed for the statute’s removal in the early 1970s, when Wisconsin was updating its criminal statutes, and again in 1985, when Wisconsin formed a committee to examine the state’s abortion and pregnancy laws. He said he doesn’t have much hope for his “Abortion Access Protection Act” in the current session because of the GOP majority, but he plans to keep introducing legislation to repeal the ban.
“You either keep fighting or you give up, and we’re going to fight,” Risser told Rewire.News.
As in other states where abortion is heavily restricted, the majority of Wisconsinites support abortion being legal in most or all cases. Polling has shown that anti-choice policies enacted by the Wisconsin GOP, like the ultrasound requirement, are unpopular. Marquette Law School polls in 2013 and 2014 found that more than half of respondents opposed the anti-choice requirement.