The Battle Brewing Over Abortion in Wisconsin

The Battle Brewing Over Abortion in Wisconsin

Published in POLITICO

Hi Rulers! Happy Friday — I’m Timea Steingart, stepping in as your guest host today with a race you should have on your radar — and it’s happening in just four days. So, grab a coffee and let’s get to it:

Wisconsin’s Supreme Court Election has been shoved into the national spotlight, with Elon Musk and others funneling tens of millions into the race, making it the most expensive judicial campaign in American history. The election will determine the ideological makeup of the court for the next decade — and the future of abortion in the state.

On Tuesday, voters will decide between two candidates: Brad Schimel, a conservative and a former Wisconsin Attorney General, and Judge Susan Crawford, a liberal and a Circuit court judge from Dane County. The Wisconsin Supreme Court race is the first major election since the 2024 presidential election, raising questions about whether it will serve as a referendum on national leadership in Washington. Spending is expected to reach $100 million and wealthy donors — including Musk, who backs Schimel — are playing a significant role in the race.

At the moment, the court, which is technically nonpartisan, holds a 4-3 liberal majority, but that could soon change.

To understand what’s at stake in this election, Women Rule spoke with Janine Geske, a former Wisconsin Supreme Court justice and a former professor at Marquette University Law School. As she sees it, the most pressing issue before the court: Wisconsin’s recently-revived 1849 abortion ban — though the case could be heard before the newly-elected justice is seated on the court.

If the court ultimately rules that the 176-year-old statute applies, Geske says, “then there is no ability to make a choice for abortion in the State of Wisconsin.”

This interview has been edited for clarity and length

This race is drawing national attention. How would you describe the significance of this election for women in Wisconsin?

Well, this race is critical for everybody, but certainly in particular for women. The court has been going through a period of time where it’s become, unfortunately, in my view, very politicized. The judicial candidates in the last couple of elections have been publicly aligned with political parties and positions on key issues, and certainly abortion is one of those. The court is at a point where it could philosophically shift substantially after April 1, depending on who wins this election.

Abortion rights are one of the biggest issues in this race, with Wisconsin’s 1849 abortion ban before the court. Under this law, doctors who provide an abortion can be charged with a felony, face jail time, fines and even lose their medical license. If the court upholds the ban, what’s at stake for women, healthcare and reproductive rights in the state?

I think that this particular case is actually pending before the court right now, so it may be that the court decides that case before August, when the new justice would take office. But that particular case really deals with the applicability of that 1849 statute. If the court holds that the statute is still enough, it affects the right to choose. Medical facilities that may be currently offering abortions and other kinds of procedures will have to stop providing them. If the court rules that the statute applies, then there is no ability to make a choice for abortion in the State of Wisconsin. There’ll be a political fight going on, whether the legislature ought to step in or not.

The election is technically non-partisan, but groups funded by Elon Musk have poured millions into supporting the conservative candidate, Brad Schimel. Judicial races have become deeply political. How concerned are you about judicial ethics and potential conflicts of interest, given the increasing role of outside money and political endorsements in this race?

I am terribly concerned about what’s happened to the court. Looking historically at these races, and I ran many, many years ago as a judicial candidate, each of us would try to get people from both sides of an issue — prosecutors and criminal defense lawyers, plaintiff lawyers and insurance defense lawyers. We really tried to get a cross-section of community leaders and others who would support us. Now these last couple of races have been clearly aligned with one political party and the other. It’s not just the political party, it’s all their political issues.

Because we’re in such a divided time in this country, it seems that these candidates are being lined up, either voluntarily or involuntarily, on all these issues. I think the general voter believes they’re voting on somebody who’s going to vote their way on the court. And that really is not what judges do. Judges interpret the law, interpret the statutes, and a judge has to have the freedom to be able to rule against his or her friends and supporters if the judge thinks that’s the right decision.

The other [problem] is the huge amount of money that’s going into these races. It used to be a contribution of $250 or $500, that was a huge contribution, and the judges would worry about that in terms of whether you need to recuse yourself.

Some have pointed out that Tesla is involved in a legal battle over direct sales in Wisconsin, which could reach the Wisconsin Supreme Court. Given that the outcome may directly impact Musk’s business interests, some Democrats have accused him of trying to buy the court. Do you agree with that statement?

This is a two-part question. One part is the statute that Tesla is attacking: whether or not you have to have a dealership in the state of Wisconsin in order to sell cars. I’m sure that Elon Musk has an interest in that. My guess is that he probably doesn’t have ten million dollars of interest. I think it’s a broader issue that he’s trying to influence how the Wisconsin Supreme Court rules on all these, what looks like to be political [issues]. He’s trying to control the court. I certainly understand the argument that he’s buying the court. To me, it’s frightening that anybody, but particularly someone outside the state of Wisconsin, is putting that kind of money behind a candidate, particularly in a race where it looks like people are running on party lines.

A recent Marquette University poll shows that voters don’t have an opinion on either Schimel or Crawford. But the majority of voters polled have negative opinions of Musk and President Donald Trump. Is this election, as some observers have said, a referendum on Musk and Trump?

I know that nationally, people are looking at it that way, and I think probably there’s some truth to that. I’m concerned about the ads on TV. The people that I talk to [think] these ads on both sides are so negative and horrible and so irrelevant to a Supreme Court justice. I’m afraid people are just not going to vote. I’ve talked to a number of people saying, “I can’t vote for either of these people.” That worries me.

On a national level, there’s going to be a lot of attention on the Wisconsin race. It is the case of being able to judge where people’s reactions are on Elon Musk and Donald Trump. All these firings and layoffs [at federal agencies] are certainly impacting people [in Wisconsin] and rippling through society generally. I suspect they will have an impact on who people vote for on April 1.

How will the outcome of this election impact the lives of women in Wisconsin, and more broadly, women across the country? Is this election a bellwether for upcoming elections, such as next year’s midterms?

It’s hard to predict depending on what’s going to happen. After the Dobbs decision, there were a number of states that had elections dealing with the issue of whether or not there was a constitutional right to have an abortion, at least at some point during the pregnancy. In a number of states, even red states, the electorate decided to protect that right of a woman [and] not to outlaw abortion.

And certainly people were looking at those legislators, and I think even some Republicans have backed off from making it the issue that they initially had planned on. This will be another election that people will look to. With Justice [Janet] Protasiewicz’s race [in 2023], abortion was an issue that was discussed over and over again. And when she ran so successfully, a lot of people thought that they had played a big role in it. So it’s going to depend on how the election turns out, but my suspicion is that it will be a big issue, and particularly among women who go to vote.Hi Rulers! Happy Friday — I’m Timea Steingart, stepping in as your guest host today with a race you should have on your radar — and it’s happening in just four days. So, grab a coffee and let’s get to it: