life after roe

Janet Protasiewicz Wins Wisconsin’s Supreme Court Race

Photo-Illustration: by The Cut; Photos: AP Images

Janet Protasiewicz, who openly supported abortion rights in her campaign, won the election for an open seat on the Wisconsin Supreme Court on Tuesday. For the first time in 15 years, the court will have a liberal majority, which will likely ensure the future of abortion access in the state.

Tuesday’s election set a new turnout record for a spring contest in an off-election year. Protasiewicz’s opponent, former State Supreme Court Justice Dan Kelly, ran on an anti-abortion platform and advised Republicans during their efforts to overturn the results of the 2020 election in the state. While abortion had been a focus of the race, Protasiewicz’s win has major implications for a wide range of other issues — from voting rights the 2024 presidential election. (The conservative-majority court came dangerously close to overturning President Joe Biden’s 2020 victory in the state.)

The overturn of Roe v. Wade sowed particular confusion in Wisconsin last year. An abortion ban dating all the way back to 1849 immediately took effect in June, outlawing the procedure in virtually all instances except where it is required to save the life of the pregnant person. Even though Attorney General Josh Kaul has said that he wouldn’t enforce the statute, abortion providers in the state stopped offering care out of fear that they could be charged by local prosecutors who’ve said they would punish them.

A challenge to this ban has been working its way through the courts, raising the stakes in Tuesday’s election. Conservatives currently hold a 4-3 majority, but now that Protasiewicz will fill the seat of a retiring conservative justice, the lawsuit that aims to overturn the 1849 ban will be heard by a liberal majority later this year.

There’s a chance the court not only lifts the ban but decides that the state constitutionally protects abortion.

Attorney General Josh Kaul sued to overturn the 174-year-old ban at the request of Governor Tony Evers, a fellow Democrat. Kaul has argued before the court that a 1985 law allowing abortion up until viability, which was implemented following Roe, supersedes the 19th-century ban. He claims that, since the 1849 law was not in effect for half a century, it is obsolete under a legal doctrine called desuetude.

“Either it is lawful to provide a pre-viability abortion, or it is not,” Kaul wrote in the complaint. “Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity.”

The legal challenge has slowly been moving through the courts, and it is likely to be heard by the Wisconsin Supreme Court after Protasiewicz is sworn in in August. But a liberal-leaning majority could go further than overturning the ban. The court could rule that abortion is protected under Wisconsin’s state constitution, which would prevent anti-choice lawmakers from further restricting the procedure. Such a decision would safeguard abortion care from the whims of the Republican Party, which controls both chambers of the legislature and recently introduced legislation to bar public employees from providing, training to perform, and even speaking about abortion.

Protasiewicz and Kelly are polar opposites.

Protasiewicz, a former prosecutor, has served as a judge for ten years. She was first elected to the Milwaukee County bench in 2013 and oversees cases in family court. Kelly, on the other hand, is a conservative attorney who previously served four years in the State Supreme Court. He was not elected to the position but appointed by former governor Scott Walker before losing the seat in the 2020 election.

The candidates stood on opposing ends of the spectrum when it comes to abortion rights. Protasiewicz said it was valuable for voters to understand her pro-choice views. “I can’t make any specific comments as to what I would do when elected as a Supreme Court justice,” Protasiewicz told Wisconsin Public Radio. “What I have told people regarding the 1849 [ban]: I have been very, very clear that my values are that women have the right to choose.” She said that, despite her personal beliefs, she’d decide any case based on the law.

Kelly is staunchly anti-choice: He has compared abortion to murder and previously offered legal counsel to Wisconsin Right to Life, an anti-abortion organization. He said he did not make any reassurances to conservative supporters on how he’d rule if the 1849 ban came before the court.

The endorsements Protasiewicz and Kelly received split along ideological lines. The Milwaukee judge was endorsed by the State Supreme Court’s three liberal justices, the state Democratic Party, and both local and national progressive organizations, while Kelly was endorsed by two of the court’s four conservative justices, the NRA’s lobbying arm, and local anti-abortion groups. More than 300 doctors and health-care professionals in Wisconsin voiced their support for Protasiewicz.

The election broke spending and turnout records.

The race made history as the most expensive state judicial contest ever with more than $42 million in spending. The money translated into votes: Wisconsinites showed up in record numbers to vote despite it being an off year. (This was the case during February’s primary too. About 960,000 people voted then — a 36 percent increase from the last record-breaking turnout in the primary election of February 2020.)

While local leaders on both sides of the aisle expected the face-off between Protasiewicz and Kelly to be close, she’d won with a comfortable margin of about 11 points as of Wednesday morning. In a state where elections are narrowly decided, Protasiewicz’s victory was a huge feat — and more proof that abortion wins elections.

Janet Protasiewicz Wins Wisconsin’s Supreme Court Race