How Wisconsin’s upcoming Supreme Court election became a referendum on abortion access

A primary election next month for state Supreme Court justice in Wisconsin is laying bare the significance of down-ballot races across the country after the Supreme Court ended federal abortion rights.

In a pre-Dobbs era, a down-ballot race for a single state Supreme Court justice in an off-year might fall off the radar. However, the end of federal abortion rights has propelled Wisconsin’s technically nonpartisan primary into national focus, with Democratic-aligned groups — and candidates — framing the race as a vote on the Badger State’s abortion ban.

The primary is set to take place on Feb. 21, where two of the four candidates with the most votes will advance to the general election on April 4. And it’s most likely that those two candidates will include one liberal and one conservative, according to Mike Wagner, a professor at the University of Wisconsin and member of its Collaborative for Reproductive Equity. The court’s balance of power is therefore on the line, since it currently holds a slim conservative majority, 4-3.

Wisconsin’s Democratic attorney general is currently pushing back against the state’s abortion ban in ongoing litigation, which experts said could eventually make its way before the state Supreme Court.

When the U.S. Supreme Court issued its ruling on Dobbs v. Jackson, a more-than-century-old law went into effect in Wisconsin, and it banned nearly all abortions in the state. In turn, last year, abortion providers were forced to shut down, and patients seeking the procedure were made to drive over state lines.

“There may be technical reasons that a case doesn’t make it to the state Supreme Court on the merits, but these issues are ultimately going to get in front of the state Supreme Court. And that court is going to decide the statutory question that the AG raises, even if this takes a while,” Larry Dupuis, the legal director at the ACLU of Wisconsin, told Grid.

In two campaign ads published on YouTube Thursday, candidate Janet Protasiewicz made her stance on abortion clear, stating: “I believe in a woman’s freedom to make her own decision on abortion.”

“Everything is at stake,” said Dr. Kristin Lyerly, a Wisconsin OB/GYN and member of the Committee to Protect Health Care’s Reproductive Freedom Taskforce.

“The restrictions are so great and onerous that it created a lot of fear and confusion and made it very hard for us to care for our patients,” said Lyerly, who previously practiced at one of four now-closed Planned Parenthood clinics in the state. She has since moved to practicing general obstetrics and gynecology across the state border in Minnesota.

With a Republican-controlled state legislature, the election is the best chance for voters to weigh in on whether there should be an abortion ban in the state, Wikler told Grid, adding, “It’s all hands on deck.”

“While the position is technically nonpartisan, especially as Wisconsin has become one of the more deeply polarized states in the union, the Supreme Court races have become very partisan as well, even though there’s not a party label attached to the candidates,” Wagner told Grid.

Aside from the ongoing case, “there are other issues surrounding abortion that could also have not been raised in this litigation that could be raised in subsequent litigation,” said Dupuis.

“It goes beyond abortion, to a whole range of issues,” Dupuis said of the upcoming election. “The state courts have always had the authority to interpret their own constitutions, but it’s becoming more salient and more important in light of the U.S. Supreme Court’s recent decisions to back away from rights that they had previously protected.”