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Opinion Wisconsin Supreme Court race previews 2024 abortion fight

Wisconsin Supreme Court candidates Janet Protasiewicz, supported by Democrats, and Republican-backed Daniel Kelly debate Tuesday in Madison, Wis. (Morry Gash/AP)
4 min

The election to fill the swing seat on the Wisconsin state Supreme Court has already shattered spending records for a judicial race. Candidates and outside groups have spent more than $20 million in the run-up to the April 4 contest. Outside spending for right-wing candidate Daniel Kelly, a staunch abortion opponent who consulted with the state party on the phony 2020 elector scheme, is outpacing spending for progressive, pro-choice Judge Janet Protasiewicz by $4.2 million.

There is no better example of the way in which the U.S. Supreme Court’s Dobbs decision overturning Roe v. Wade continues to reverberate through our politics — and will continue right through the 2024 election.

As it did in Wisconsin’s February primary, abortion continues to drive the money and dominate the coverage of this race, given that the closely divided state Supreme Court could decide the fate of an 1849 law criminalizing abortion in most cases. At a debate this week, Protasiewicz said, “My personal opinion is that should be a woman’s right: to make a reproductive health decision. Period,” she said. “If my opponent is elected, I can tell you with 100 percent certainty that (the) 1849 abortion ban will stay on the books.” Unconvincingly, Kelly (who worked for Wisconsin Right to Life) insisted, “You don’t know what I’m thinking about that abortion ban.”

Actually, voters have a pretty good idea. “Pro-Life Wisconsin only endorses candidates ‘who recognize the personhood of the preborn baby and hold the principled and compassionate no-exceptions pro-life position,’” Wisconsin PBS reported. “The Wisconsin Right to Life Political Action Committee said when it announced its backing of Kelly that it only endorses candidates ‘who have pledged to champion pro-life values and stand with Wisconsin Right to Life’s legislative strategy.’" (A Wisconsin Right to Life representative says this standard only applies to legislative candidates.)

It’s no secret why Kelly is being coy. Polling shows that more than 60 percent of Wisconsin voters favor legal abortion. A Marquette University Law School poll in September found that 90 percent support abortion access in cases of rape or incest — including more than 80 percent of Republicans. Protasiewicz’s pro-choice stance is widely credited with driving turnout in the primary and giving her wins in parts of the state that don’t ordinarily vote for progressives.

One ad for Protasiewicz featuring a young woman learning her baby would have severe abnormalities captures the emotion driving the race:

Republicans read the polls, too. They’re rightly concerned. Some Republican lawmakers introduced a bill to allow a rape and incest exception to the near-absolute abortion ban, a retreat from their previous support for the original 1849 prohibition. But even that is too much for Republican leaders, who vow not to bring the bill to the floor. Moreover, some of the very groups backing Kelly oppose that bill; Pro-Life Wisconsin also opposes a separate measure to allow over-the-counter birth control.

Democratic state party chairman Ben Wilker ridiculed the effort as a “publicity stunt” in a recent public comment. However, the failed legislative effort may well redound to Protasiewicz’s benefit, as it reminds voters just how out-of-step Kelly’s abortion stance really is.

That a single, off-year state Supreme Court election has driven so much money and attention to Wisconsin gives us a hint of what to expect in 2024 when Democratic candidates from president to city council lean into the abortion issue.

Protasiewicz tells me, “I’ve heard from people in every corner of the state who are concerned about Wisconsin’s extreme criminal abortion ban from 1849.” She added that she’s hearing from voters that women “across this state shouldn’t be told what to do with our bodies, especially by extremists like Dan Kelly.”

Moreover, by 2024 (and perhaps even before the April 4 Wisconsin election), a federal judge in Texas may have triggered another Dobbs-size backlash by taking it upon himself to reverse Federal Drug Administration approval of a safe and effective drug used both for abortions and miscarriages. The specter of judges and lawmakers rifling through women’s medicine cabinets would petrify many voters, underscoring the forced-birth crowd’s ambition to take away women’s reproductive autonomy.

And that in turn should give Republicans at all levels pause. They would do well to watch the growing evidence that Dobbs is the strongest, most-effective issue to come along in decades for Democrats. With MAGA presidential contenders, House members and senators vying with one another to sound the most devoted to a nationwide ban on abortion, the 2024 election may well come down to a referendum on whether women or politicians get to control women’s bodies.