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ABORTION | 1849 BAN

Disagreement over rape, incest exceptions in Wisconsin abortion ban has political and legal ramifications

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Tony Evers, Robin Vos

Gov. Tony Evers, foreground, and Assembly Speaker Robin Vos in 2019.

As the next legislative session nears, the Assembly’s top Republican has repeatedly indicated he’s open to efforts to add exceptions for rape and incest to the state’s near-complete abortion ban.

That concession from Assembly Speaker Robin Vos, R-Rochester, appears to be a compromise after a midterm election that saw considerable Democratic turnout driven largely by the U.S. Supreme Court striking down Roe v. Wade. However, Vos’ most recent proposal could require victims of sexual assault or rape to first file a police report in order to qualify for the exception.

Democratic Gov. Tony Evers has already signaled he would reject the proposal. He has said that signing such a measure would be acknowledging that the state’s 1849 abortion law remains in place — something he does not want to do. Signing those exceptions into the 173-year-old law could also hurt Democrats’ efforts to challenge the ban in court.

The impasse makes it unlikely any sort of legislative agreement will be reached, meaning the future of abortion policy in the state will almost certainly be decided by the courts.

Since this summer, Vos has said several times that he supports adding rape and incest exceptions to the state’s ban. In an interview with WSAU this week, Vos said the goal is to seek out a position more in line with the views held by the majority of Wisconsin residents.

“I also think that having a discussion about where society is and making sure that we are in tune with the majority in society is important, because we have to work on winning the culture war, but we also have to work on making sure that we have a position that is tenable and it makes sense to the vast majority of people,” Vos said.

The Marquette Law School’s most recent poll, released earlier this month, found that 84% of respondents — including 73% of Republicans — think abortion should be legal for victims of rape or incest. Fifty-five percent of respondents said they oppose the U.S. Supreme Court’s decision to overturn Roe.

“If every election going forward is about abortion, we’ve got to figure out ways to either do a better job messaging or to make sure we are on the majority side, for more than just one or two issues,” he added.

Senate Majority Leader Devin LeMahieu, R-Oostburg, said he is meeting with Senate Republicans to gauge members’ positions ahead of the new session in January.

“As of now, I am not sure where the entire caucus stands on this specific issue, but I look forward to continuing my conversations on this topic and more with them,” LeMahieu said.

Ban challenged

Evers has has sought to codify Roe, which established a constitutional right to abortion until a fetus is viable, and has said he would not support adding exceptions for rape or incest to Wisconsin’s 1849 law if doing so meant the law remained in place.

In challenging the state’s ban, Attorney General Josh Kaul said more recent and permissive abortion statutes supersede the old one. He also said the law is unenforceable because of its disuse.

“An agreement to update the disputed law could very well undercut the current legal challenge,” said UW-Madison Law School associate professor Robert Yablon. “If an amendment were to build on the 1849 law, that could well be interpreted as an acknowledgement that the 1849 law (as amended) continues to apply.”

“If those exceptions were instead adopted as stand-alone measures separate from the disputed law, it might be less likely that the current lawsuit would be affected,” he said.

Attorney Leslie Freehill, who is representing physicians intervening in the case, said adding those exceptions wouldn’t moot or resolve the case. She said there would continue to be incompatibilities between the 1849 law and more recent ones, including conflicting views on whether abortion is permitted when the mother’s health is at stake.

“Rape and incest exceptions alone will not allow physicians to return to practicing medicine or pregnant women across Wisconsin to sleep easier at night,” she said.

Police reports

Asked in the radio interview if he supported requiring victims of sexual assault to file a police report before they could qualify for an abortion under the exceptions, Vos said, “Yes.”

Evers’ spokesperson Britt Cudaback said Wednesday the governor would veto such a bill.

“Wisconsinites have made it quite clear they support safe, legal access to abortion, so it’s unfortunate that Speaker Vos would rather carry (former Republican gubernatorial candidate) Tim Michels’ mantle than work together to do the right thing and codify Roe,” Cudaback said.

“Gov. Evers spent his first four years in office defending reproductive freedom and vetoing radical bills like this, and he’ll gladly spend the next four years doing the same.”

Only 23% of sexual assault victims reported to police in 2020, according to a 2021 report by the U.S. Department of Justice.

Steven Webb, executive director of Planned Parenthood Advocates of Wisconsin, said such exceptions “do not provide meaningful access or support for survivors, especially when they require survivors to report to law enforcement to qualify.”

“What survivors of sexual violence in Wisconsin need is to be able to access safe, legal abortions in a timely manner, not to have to navigate a web of restrictions to access this time-sensitive care,” Webb said, urging Vos and legislative Republicans to simply repeal the state ban.

Senate Minority Leader Melissa Agard, D-Madison, said any proposed requirement that victims file a police report to receive an abortion was “absolutely absurd.”

“We know that often survivors of sexual assault do not report the incident to law enforcement for various reasons,” Agard said. “Rather than creating additional hoops that survivors must jump through to access needed medical care, we should be respecting their bodily autonomy and restoring their decision-making power.”

Vos said Friday opponents of such a measure were “looking to muddy the issue rather than focus on commonsense solutions.”

“The number of unreported sexual assaults is startling,” Vos said. “It is my hope that encouraging more women to report their rapist could prevent repeat attacks on other women.”

No clear path

By refusing to consider amending the state ban, Democrats are taking a “scorched-earth approach,” said Julaine Appling, president of the anti-abortion rights group Wisconsin Family Action. “They want the 1849 law completely eradicated,” she said.

Republicans will not agree to such a proposal, she said.

“The Republicans are going to come up with something that they can live with, right?” she said. “They’re going to pass it, the governor is probably going to veto it unless it gives him enough room to look like he didn’t sell out. And I think you just end up in a stalemate.”

Speaking with reporters at Madison’s O’Keeffe Middle School the day after winning a second term, Evers acknowledged that finding bipartisan agreement on abortion policy would be “difficult.”

“I don’t see a way to resolve this legislatively,” Evers said. “I think it’s going to have to happen in the courts.”

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