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Money has poured into a contest that could have major repercussions for abortion—and even for the 2024 presidential election.
The race to fill an open seat on the Wisconsin Supreme Court—and determine ideological control of the highest court in one of the country’s most important swing states—has more than doubled the national record for judicial election spending. Over $31 million has been spent to date on advertising ahead of the April 4 election, whose winner is expected to deliver the tie-breaking vote on key issues such as abortion, redistricting, and election law.
Spending is “explosively high because the stakes are so monstrously gigantic,” state Democratic Chair Ben Wikler told Bloomberg Government. “Wisconsin is on a knife’s edge and holds the power to sway a presidential election one way or another.”
In 2020, the Wisconsin Supreme Court voted 4-3 to block an attempt by political allies of Donald Trump to throw out 200,000 ballots in liberal-leaning counties.
Democrats have put millions behind Milwaukee County Judge Janet Protasiewicz, a liberal candidate who’s made no secret of her support for abortion rights. Her campaign has spent about $12.6 million on TV and digital ads, with millions more spent by outside groups. Her opponent, conservative Dan Kelly—a former justice who lost his supreme court seat in 2020—was supported by anti-abortion groups in the primary.
The election could have major implications for the future of abortion access in Wisconsin, where abortion providers have halted services statewide due to a lack of clarity over whether an 1849 law making it a felony to provide an abortion can still be enforced. A case seeking to overturn the old law is currently making its way through the courts. Ultimately, that case could make abortion legal again in Wisconsin, as I reported last fall:
According to Bloomberg, Protasiewicz’s ads in Milwaukee and Madison highlight the abortion issue, while in more conservative parts of the state, they criticize Kelly for representing clients accused of sexual assault and for not recusing himself from a political donor’s case. The groups supporting Kelly, including Wisconsin Manufacturers & Commerce, are also messaging around sexual assault—accusing Protasiewicz of sentencing a convicted rapist too leniently.
In late June, Wisconsin Attorney General Josh Kaul filed a challenge to the 1849 statute, arguing that the old law conflicts with a newer law from the 1980s that permits abortion in the first and second trimesters. “Either it is lawful to provide a pre-viability abortion, or it is not,” Kaul said in his complaint, filed in Dane County Circuit Court. “Wisconsin abortion providers cannot be held to two sets of diametrically opposed laws, and the Wisconsin people deserve clarity.”
…A more progressive state supreme court could do more than just invalidate the 1849 ban. It could rule that the state constitution guarantees access to abortion, protecting against future legislative attacks. Like a mini Roe v. Wade, such a ruling could restore a right to abortion, if only within Wisconsin’s borders. “The best way would be for there to be a state constitutional protection,” [Planned Parenthood of Wisconsin director of legal advocacy and services Michelle] Velasquez says. “That’s where the court cases could really help reach our goal of protecting access for Wisconsinites for the long term. So that we don’t have this back and forth of laws depending on who is elected.”
Meanwhile top Democratic figures nationally have gotten involved in the race, reflecting the stakes. “It’s going to be close,” Barack Obama tweeted last week, sending a link for people to sign up to volunteer with the Wisconsin Democrats.