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The high-stakes race in Wisconsin that could impact abortion rights — and 2024

by Caroline Vakil - 01/29/23 2:43 PM ET

A race for a Supreme Court seat in Wisconsin could determine the future of abortion rights in a state likely to play a crucial role in the 2024 presidential election.

The Wisconsin Supreme Court has a 4-3 conservative majority, but conservative Justice Patience Roggensack is opting not to seek another term, evenly splitting the court along ideological lines. Voters will head to the polls for a February primary, which will determine which two justices from a group of two conservative candidates and two liberal candidates will move on to the April general election.

Whoever wins that state Supreme Court seat is likely to weigh in on a consequential lawsuit over a contested 1849 abortion law, which offers no exceptions except for the life of the pregnant person, and the outcome of which could have major implications for one of the country’s few remaining swing states.

Wisconsin-based Democratic strategist Joe Zepecki said that anger following the U.S. Supreme Court’s overturning of Roe v. Wade last year is still motivating voters and will play a crucial role in this year’s state judicial race.

“The midterms did not go the way Republicans thought they would, and I really believe that one of the main reasons behind that was the Dobbs decision. Nothing has fundamentally changed in the landscape,” Zepecki said. “That means that all of a sudden the voters who are passionate about abortion in November of last year aren’t gonna go, ‘Oh, well, we did what we could. Oh, well, we’ll just live with this.’”

State Attorney General Josh Kaul (D) filed a lawsuit last year arguing that legislation passed following the Supreme Court’s Roe v. Wade decision, which allows abortions up until a fetus’s “viability” with limited exceptions afterward, created a conflict with the 1849 abortion law. Depending on how the court rules, it could keep abortion restrictions in place or offer broader exceptions to pregnant people.

Mark Jefferson, executive director of the Wisconsin GOP, argued the focus on abortion was “a dodge” and said the party is “trying desperately to get away from discussions about other issues in which the liberals are horribly out of touch.” He listed school choice, voting changes and Second Amendment rights as other issues that could likely come up.

Two liberal judges — Milwaukee County Judge Janet Protasiewicz and Dane County Judge Everett Mitchell — and two conservative judges — Waukesha County Judge Jennifer Dorow and former state Supreme Court Judge Daniel Kelly — are vying for the open state Supreme Court justice seat in the Feb. 21 primary.

The top two vote-getters will move on to the general election on April 4, meaning two candidates from the same party or one from each could proceed to the final round.

There are other issues besides abortion at play in the race: Democrats see redistricting and the state’s legislative maps as critical issues. And Barry Burden, a political science professor at the University of Wisconsin-Madison and the director of the university’s Elections Research Center, says Republicans are likely hoping several ballot measures they added to the spring election — one on work requirements for welfare recipients and another on bail — will excite their base.

But most of the candidates have made a point of speaking out on abortion. Groups on either side of the issue have also waded into the race, suggesting that it’s likely to play a major role.

Mitchell, one of the liberal justices, issued a statemen t in the wake of the Supreme Court’s decision last summer to overturn Roe v. Wade, saying that “the reality of a reproductive right being taken from women, is both heart-wrenching and disappointing” and that “as an ally, I will always use my male privilege to stand with and to stand up for women’s reproductive rights.”

Protasiewicz, the other liberal justice running, issued a 15-minute ad through her campaign in which she said, “I believe in a woman’s freedom to make her own decision on abortion.”

Jim Dick, a campaign spokesperson for Kelly, one of the conservative candidates, gave a statement to The Hill touting endorsements “by all three major pro-life groups in the state.” One of those, Wisconsin Right to Life PAC, has also endorsed the other conservative candidate, Dorow.

Though some of the candidates have fielded criticism for sharing opinions on the issue, Mitchell and Protasiewicz’s campaigns argued in separate interviews with The Hill that the candidates are allowed to express their own beliefs and have not said how they would rule on a case if it came before them.

“We are judges and we are lawyers, more specifically, so we can have an opinion as to the law that’s already been written and decided on, and both sides can do that,” Mitchell told The Hill, while an official said with Protasiewicz’s campaign said that “there’s nothing that prevents a candidate [from] saying what their beliefs are.”

Meanwhile, outside groups on both sides of the issue have started previewing their involvement in the race.

Stephen Billy, vice president of state affairs at Susan B. Anthony Pro-Life America, an anti-abortion group, said that the organization will be making a six-figure investment in the race.

“We’re not going to let the abortion advocates spend money to lie and to fearmonger, and we’re going to fight back against that with a six-figure investment to make sure that the truth about the pro-life laws in Wisconsin are known and that the voters understand the other side is seeking to make sure that abortion on-demand is the permanent law in Wisconsin,” Billy said.

Steven Webb, executive director of Planned Parenthood Advocates of Wisconsin, declined to offer a dollar amount on potential spending in the race but said the organization would be involved.

“We’ve prioritized this election and [are] committed to do the on-the-ground organizing and outreach to inform people about the importance of the race. We will be mobilizing young people, women and people of color to make sure that their voices [are] heard in this election. The investments that we will be making will be around — for education, GOTV campaigns and digital advertisement, direct mail,” he said.

The stakes of the race are also high because Wisconsin is one of the few remaining battleground states, and Democrats are likely to use the abortion issue as one key turnout mechanism in 2024. Should a more a conservative-leaning state Supreme Court rule in favor of more restrictive abortion rules ahead of the presidential election, Democrats will almost certainly seize on any upswell of anger among voters, just as they did in 2022.

At the same time, the Supreme Court’s decision last year has created a patchwork of state laws that have regulated differently on the medical procedure. While Illinois has abortion protections and Michigan, with its newly Democratic-controlled legislature, will likely pass abortion protections, Wisconsin represents a different reality to patients and medical students.

“Right now, Wisconsin is losing OB-GYN practices. Students who want to become OB-GYN doctors have to leave the state to complete their training because you can’t teach the standard care for cases of ectopic pregnancy or miscarriage without fearing that a reverend prosecutor is going to try to throw you in jail,” said Ben Wikler, chairman of the Wisconsin Democratic Party.

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“This situation is totally unacceptable to most Wisconsinites, and the Supreme Court election [on] April 4 is the closest thing Wisconsin will have to Kansas’s abortion referendum,” he added.

Retired GOP strategist Brandon Scholz, who called the upcoming election “the single most important race for the Supreme Court” that Wisconsin has ever seen, says this much is clear: Money will continue to pour into the race on the Democratic side, and Republicans will need to compete in terms of fundraising if they want to win.

“If this isn’t a $20 million dollar race, I don’t know what it is,” he said.

Tags Abortion Redistricting Wisconsin Supreme Court