Democrats in swing states vow to defy anti-abortion laws

When the U.S. Supreme Court handed down its Roe v. Wade ruling in 1973, anti-abortion laws in Wisconsin, Michigan and many other states began unenforceable — and they remained unenforceable for 49 years. But that changed on June 24, 2022, when the High Court announced that it had overturned Roe v. Wade with its decision in Dobbs v. Jackson Women’s Health Organization.

Now, those laws are once again enforceable, but some Democratic governors, state attorneys general and prosecutors are vowing to defy their enforcement. Journalist Bill Lueders, a former editor for The Progressive, takes a look at those vows of defiance in an article published by the conservative website The Bulwark on July 1.

The 62-year-old Lueders, a native of Milwaukee, cites Gov. Tony Evers as an example of a Democratic governor who says he will not enforce his state’s anti-abortion law — which goes back to 1849. Evers declared, “I will provide clemency to any physician that is charged under that law…. I don’t think that a law that was written before the Civil War, or before women secured the right to vote, should be used to dictate these intimate decisions on reproductive health.”

READ MORE: Biological daughter of ‘Jane Roe’ torches Court for its overturn of the historical abortion rights precedent

Similarly, Wisconsin Attorney General Josh Kaul, also a Democrat, and the Milwaukee County District Attorney’s Office have vowed not to prosecute anyone for abortion.

Nonetheless, the 1849 law will still be on the books, and it isn’t going to be overturned as long as far-right Republicans control both branches of the Wisconsin State Legislature. In light of how insanely gerrymandered Wisconsin’s legislative map is, the Legislature is likely to be controlled by Republicans for some time to come.

“At some point, someone in Wisconsin is going to be convicted of a crime for performing an abortion, and will want to take Evers up on his offer of clemency — should he still be in office,” Lueders explains. “He’s up for reelection this fall. So far, he seems to be the only governor in the nation to extend an offer of clemency or commutation to those who run afoul of their state’s laws restricting abortion, although others have bolstered abortion protections in other ways since the Dobbs ruling…. Several other elected officials in legislative red states profess unwillingness to enforce newly revived or triggered laws against abortion.”

READ MORE: Why Roe’s demise pushed the US even closer to violent civil conflict: author

Lueders notes that prosecutors in four counties in Georgia (Fulton, Cobb, Gwinnett and DeKalb) have “either sworn off or indicated resistance to prosecuting abortion cases.”

In Fairfax County, Virginia, head prosecutor Steve Descano has put Republican Gov. Glenn Youngkin on notice and vowed to defy any future anti-abortion laws in his state. Youngkin is a perfect example of how sneaky Republicans in swing states can be when it comes to abortion; he generally avoided the issue during his 2021 gubernatorial campaign, but behind closed doors, Youngkin has vowed to “start going on offense” against abortion when he has a chance.

In the Midwest, one of the anti-abortion laws that became unenforceable in 1973 thanks to Roe v. Wade was a 1931 law in Michigan. Gov. Gretchen Whitmer has vowed to fight the law, but Republicans have majorities in both the Michigan State Senate and the Michigan House of Representatives.

Post-Roe, there are likely to be some states where abortion is illegal but anti-abortion laws go largely unenforced. Wisconsin could be such a state if Evers is reelected in November.

Lueders observes, “There will be times when the only thing that stands between an abortion provider and a jail cell will be a prosecutor who refuses to enforce the law — or a governor who offers clemency to those who break it.”