While the rest of y’all were out hootin’ and hollerin’ and blowing things up over the Fourth of July weekend, Wisconsin Gov. Scott Walker was setting off a few of his own rockets inside his state’s capitol building, signing into law a cookie-cutter bill aimed squarely at making abortions tougher to come by in the Badger State.
The law—which forces women to view an ultrasound before an abortion and requires doctors who perform the procedure to have admitting privileges at a hospital within 30 miles of their clinics—is a cookie-cutter bill because at least that “privileges” portion is nearly identical to that in similar laws passed recently in seven other states. For example, it’s just like the bill that Wendy Davis epically filibustered in Texas, as well as the one that threatens to shut down the only abortion clinic in North Dakota.
Like the other state legislation, the Wisconsin bill faced an immediate legal challenge, as an unconstitutional attempt at an end run around the two big Supreme Court cases that allow American women to safely terminate their pregnancies: Roe v. Wade and Planned Parenthood v. Casey.
The night before Wisconsin’s law was to take effect, on Monday, a federal district judge issued a temporary injunction at the urging of the Planned Parenthood of Wisconsin and Affiliated Medical Services. This was expected, legal experts tell The Daily Beast, as is a complete takedown of the law once it likely winds its way up to the Seventh Circuit Court of Appeals.
“In this particular case, it looks like the law violates Planned Parenthood v. Casey, in that it poses an undue burden to a woman’s ability to obtain an abortion,” said Julie Rikelman, the director of litigation at the Center for Reproductive Rights. By forcing two of the state’s four clinics to shut down, “it has the effect of making an abortion unavailable.”
So if that all comes true, and the passage of this legislation turns out to be as quixotic as the House of Representatives’ 37 votes to repeal Obamacare, what’s the point? Wouldn’t Wisconsin lawmakers’ time have been better spent watching Packers’ highlights? Why all these state-level backdoor abortion bans?
Several key reasons, say those both for and against such bills: with gerrymandered voting districts giving Republicans a solid lock on the statehouse, the bills score points with the conservative base—and perhaps the legislators thought nobody would notice. The number of states with divided legislatures today has dwindled to five, says Louise Melling, the deputy legal director of the American Civil Liberties Union. In 26 states, both houses of the legislatures and the governorship are all Republican. And in those states, lawmakers have little fear about getting booted from office if they pass a controversial anti-abortion bill, says Larry Dupuis, legal director for the ACLU’s Wisconsin chapter. “What has made them feel a certain amount of freedom to push through controversial legislation is that they now have districts that are incredibly forgiving,” Dupuis tells The Daily Beast.
Republicans see it differently, of course. Rick Esenberg of the Wisconsin Institute for Law and Liberty, a conservative think tank, says the reason these state efforts are appearing now is because the Supreme Court did a lousy job with both Roe and Casey, “stifling” real political debate about abortion with indefensible and “laissez faire” rulings. Had the court more wisely left the matter to the states, Esenberg insists, we would have spent the last few decades deciding how best to handle the issue and might no longer be arguing about it.
“Maybe if you had a 40-year process of give-and-take in state legislatures, we would have reached a consensus on this,” Esenberg tells The Daily Beast, “and the laws would look more like Europe, where, yeah, you have the right to an abortion, but it’s far more strictly regulated. Instead Roe and Casey cut off the debate.”
Doomed by a court challenge or not, voting in favor of (and signing) a bill that makes it harder for women to get abortions is apparently becoming a kind of rite of passage for Republicans, especially those eyeing loftier political ambitions, Dupuis said. “It’s trendy,” adds Rikelman, and “straight out of the [Americans United for Life] playbook.”
If recent history is prologue, this ground war on a woman’s right to choose might not have received so much media attention but for Davis’s pink-shoed filibuster on the floor of the Texas Assembly last month. Consider: 2011 was a year that also brought state-level onslaughts against abortion rights, but they barely provoked a stir, Melling tells The Daily Beast. Then, in 2012, the so-called war on women became a national talking point—but mostly due to the inane comments (“legitimate rape”) of politicians at the national level and the Komen foundation’s misguided move to defund Planned Parenthood. By 2013, perhaps, abortion foes thought the storm had passed and they could retreat quietly back to state-by-state battles.
“In state legislatures, people don’t pay a tremendous amount of attention,” Melling says. “For the longest time, states have been able to keep laying restrictions on abortion.”
The strategy was working, in a way. Of the eight states that have enacted “admitting privileges” laws this year, four are unchallenged, says Elizabeth Nash, state-issues manager of the Guttmacher Institute, which tracks abortion regulations nationwide. And until the Davis filibuster, these bills weren’t inspiring much public outrage, at least not on a national level, Melling said.
“Unless it was a ban,” Melling says, “people weren’t really paying attention.”
To be sure, the national organizations that filed lawsuits against the admitting-privileges bills would have done so regardless of any national clamor, but the lack of such vocal opposition provides cover for politicians who want to curry favor with their bases while avoiding having their heads on sticks on national television.
“If Walker has national ambitions, he’s got to walk the tightrope of satisfying certain elements of the base, while also trying to maintain some semblance of moderation, should he get through the primaries in a general election,” Dupuis says.
What happens now? In Wisconsin, at least, Dupuis suspects that the Seventh Circuit Court of Appeals is likely to scuttle the bill Walker signed, though that may wind up being determined based on the outcome of the providers’ pending privileges applications. If the two of four clinics where abortion providers don’t already have privileges apply for and are denied them, Nash says, that would clearly result in a “huge impact” on a woman’s ability to obtain an abortion, and thus be unconstitutional under Casey.
“If Wisconsin had 10 providers, this might be a different story,” Nash said.
But if the privileges are granted, the legal argument that this bill unreasonably restricts a woman’s access to a safe abortion could be nullified. And the providers are applying for privileges, because if they don’t, the ACLU’s lawyers can’t make their case. “I don’t really know for sure whether the providers will be able to get privileges,” Dupuis says.
The judge’s temporary restraining order expires this week.