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Eyes turn to enforcement as Wisconsin's abortion ban stays on the books

  • Updated
State Capitol Sunset

MADISON (WKOW) -- Wisconsin lawmakers didn't repeal the state's abortion ban Wednesday, and the U.S. Supreme Court is poised to overturn Roe v. Wade. If that happens, abortions done for any reason other than saving the mother's life would be a felony in Wisconsin. However, it's not a guarantee that the doctors who perform abortions or the women who receive them would always face criminal charges. 

"The legislature criminalizes behavior, passes statutes, those are not commandments to enforce the law," Lanny Glinberg, a clinical assistant professor at the University of Wisconsin Law School and former assistant Dane County district attorney, said. "Rather, they are authority to enforce the law."

Glinberg said just because a law is on the books doesn't mean law enforcement will always investigate or make arrests, and it doesn't guarantee prosecutors will bring charges. 

He said people in the criminal justice system choose nonenforcement of laws every day, even if many issues aren't as high profile as abortion. 

"Setting discretionary enforcement priorities is extremely common," he said, "It's really quite ordinary, in fact, and has happened since statehood."

Tuesday night, Madison's Common Council passed a resolution that opposed the overturning of Roe v. Wade, opposes Wisconsin's abortion law and supports a change to the Madison Police Department's orders to reflect that officers won't arrest anyone for violating the abortion ban, and will, instead, refer them to the state health department. 

Glinberg said the decision to not enforce certain laws comes boils down to a shortage of resources. 

"We don't have the resources in terms of courts, judges, public defenders, prosecutors, investigators, social workers, all these actors within the system to get perfect and complete enforcement of all of our statutes," he said. 

MPD isn't alone in its decision to prioritize using its resources in other ways. 

In May, Attorney General Josh Kaul, a Democrat, said he doesn't want the state Department of Justice to focus on prosecuting people who violate Wisconsin's abortion law if it goes back into effect. Instead, he wants to prioritize cases for other crimes, like murder. 

"To take resources away from those purposes and instead use them to go after people for alleged violations of an abortion ban that hasn't even been in effect in the state for almost 50 years, to me would be a huge misuse of resources," he said. 

For elected public officials like Kaul, Glinberg said the decision to not enforce specific laws can make or break a political career. 

"Whether or not to enforce certain statutes or what enforcement priorities are is very much the stuff of political campaigns for prosecutors or sheriffs [or] other elected officials," Glinberg said. "In fact, we've seen recently and historically those enforcement priorities have been the basis for electoral success or electoral defeat in some circumstances."

A spokesperson for the Dane County Sheriff's Office declined to say if the agency is planning to enforce the state abortion ban should it go into effect again. However, she said Sheriff Kalvin Barrett will share a statement if the Supreme Court overturns Roe V. Wade.