Wisconsin voters meet post-Roe challenge

An unabashed abortion rights supporter won a seat on the Wisconsin Supreme Court last week in a stunning 11-point victory over a conservative anti-abortion judge. Milwaukee County Judge Janet Protasiewicz's defeat of former state Supreme Court Justice Dan Kelly gives the court a liberal majority for the first time in years.

As in other state elections since Roe v. Wade was overturned last June, voters have turned out when abortion was on the ballot and made it clear they support reproductive rights. That was certainly the case in Wisconsin, where abortion is unavailable except in cases in which the pregnant person's life is in danger. The contentious race, which drew national attention and funding, is considered the most expensive judicial contest in U.S. history.

But what also makes it unusual is how partisan this nonpartisan judicial race became. It's not just that Protasiewicz was backed by the Democratic Party and abortion rights groups, or that Kelly, who provided legal advice in the past to Wisconsin Right to Life, was backed by the Republican Party (which he also worked for in 2020) and anti-abortion groups. It was notable because Protasiewicz intentionally made her support for abortion rights clear. "I think the electorate deserves to know what a person's values are rather than hiding them," she said during the race's only election debate.

Everyone expects the Wisconsin Supreme Court to eventually rule on a lawsuit by the state challenging the legitimacy of an 1849 Wisconsin ban on abortion. One district attorney has threatened to enforce it, and abortion providers have stopped their services for the time being. The state attorney general argues that the ban is superseded by more recent laws allowing abortion.

During the debate, Protasiewicz stated that she could not say how she would vote if that case came before her and that she would base her decision "solely on the law and the Constitution." But she took a swipe at her opponent, saying she knew "with 100% certainty" that if he were elected, he would uphold the ban. Kelly protested, saying that "you don't know what I'm thinking about that abortion ban."

Of course, given the candidates' histories and the groups supporting them, it's probably a safe bet that Protasiewicz will vote to overturn the abortion ban — and that voters knew that when they went to the polls.

That's not the only high-stakes issue that could come before the state's high court. Law Forward, a Madison-based law firm, is expected to file a lawsuit challenging the state's voting maps, arguing that partisan gerrymandering violates the state Constitution. Wisconsin has a Democratic governor and a Republican Legislature — which, as of this recent election, has a supermajority in the state Senate.

Changing those maps could change the composition of the Legislature and lead to, among other things, state laws protecting abortion access — something the Republican-controlled state Legislature has done nothing on "despite the fact that the majority of Wisconsinites are committed to reproductive freedom," said Michelle Velasquez, the director of legal advocacy and services for Planned Parenthood Advocates of Wisconsin.

It may seem unsettling for a judicial candidate to be honest about their point of view on issues that are at play in future judicial cases. However, in the recent years, we have listened to U.S. Supreme Court nominees coyly deflect any questions about whether they would respect the nearly 50-year-old Roe v. Wade decision — or, in the case of Brett Kavanaugh, reverentially acknowledge that "it has been reaffirmed many times" — only, once confirmed, to overturn that ruling and take away an established constitutional right.

So it's rather refreshing to hear a judicial candidate be honest about their take on the right to control one's body.

Ideally, voters shouldn't decide what rights people should have or — more worrisome — decide what rights people shouldn't have. The establishment of civil rights and the protection of human rights should be the work of the courts. But when the U.S. Supreme Court overturned Roe and took away the constitutional right to abortion, it left it up to the states — and the voters of those states — to protect reproductive rights.

This is the post-Roe world in which we live. For the time being, we have to rely on voters to do the right thing and protect the rights the Supreme Court wouldn't. That's what Wisconsinites did Tuesday, and whether we live in that state or not, we should all be grateful.