Blog: “The Collateral Consequences of Texas’ Abortion Bill and How It Could Affect Wisconsin”

The Court denied an emergency request from abortion clinics in Texas to temporarily block a law that bans abortions after detecting cardiac activity, which is approximately six weeks. As a result, the law went into effect while the case makes its way through the federal courts. It means that most, if not all, abortion providers in Texas have stopped providing abortions to women who have reached 6 weeks since their last menstrual period, which is more than 80% of women seeking abortions

No. Whole Women's Health does not say whether or not the Texas law violates the Constitution. The ruling suggests that a majority of the Supreme Court thinks the clinics would have to violate the 6-week ban and wait for a lawsuit from a private party before it could challenge whether the law is constitutional. But the risks of breaking the law are so high (a minimum of $20,000 in "damages" and a future lifetime ban from doing any abortions) that clinics may not want to take the chance. That means it is very difficult, if not impossible, to challenge a law of this sort that deputizes private citizens to enforce the law.

Not directly. Wisconsin has a law on the books that bans abortions altogether (Wis. Stat. 940.04) as well one that bans abortions after 20 weeks gestation (22 weeks after the last menstrual period). Wis. Stat. 253.107. The total ban cannot be enforced as long as Roe v. Wade is in place. The 20 week ban is also likely unconstitutional under Roe, but has not been challenged in court.

Probably not with the current governor in office. It seems possible that the Wisconsin legislature could pass a law similar to the Texas ban, but it is unlikely that the current governor would sign the bill into law.The elections in 2022, however, could change the composition of the legislature and/or the governor's office in a way that would make such a law more likely to be enacted.

Not really. The Supreme Court has already agreed to hear another major abortion case, Dobbs v. Jackson Women's Health Organization, which could limit, or even overrule, Roe v. Wade. That case will probably be argued in November or December 2021, with a decision announced by the Court by the end of June 2022. 

Wisconsin's outright ban on abortion (Wis. Stat. 940.04) is unconstitutional and unenforceable under Roe v. Wade, which held that states couldn't prohibit abortions before a fetus is "viable," which occurs at about 26 weeks (though some argue that advances in neonatal medicine may make viability earlier). Dobbs involves a 15-week abortion ban in Mississippi that would clearly be unconstitutional under Roe. The Court could use Dobbs to completely overrule Roe, allowing states to ban abortion at any time during pregnancy. If the Court goes that far, prosecutors could start trying to enforce Wis. Stat. 940.04 against doctors who continue to perform abortions. Although there might be some arguments about whether the ban would automatically be enforceable, many doctors may not take the chance, and abortion would become practically unavailable in the state.

But the Court does not have to overrule Roe to do damage to abortion rights. It could make a narrower ruling, allowing some bans or restrictions on abortions before viability, but not others. In that case, it will be harder for anti-abortion groups to argue that Wisconsin's current total ban is immediately enforceable, though any pro-choice challenge to the 20-week ban in Wis. Stat. 253.107 would be very difficult if Mississippi's 15-week ban is upheld. Of course, it is also possible that the Court could strike down Mississippi's 15-week ban and reaffirm Roe, but many observers believe that the current majority of the Court is likely to at least limit Roe somewhat.