Why does Wisconsin’s judicial race matter? Here’s why pro-lifers are concerned

Wisconsin Supreme Court View of the Supreme Court of Wisconsin located inside the Wisconsin State Capitol building in Madison. | EQRoy/Shutterstock

Voters in Wisconsin are one step closer to choosing a new state Supreme Court justice after a Feb. 21 statewide primary whittled the field down to two candidates who will face off again in April with a 10-year term on the state’s high court on the line.

The Wisconsin judicial race, which might have remained obscure in other years even within Wisconsin, is garnering national media attention and record fundraising numbers for the candidates. Why?

Here’s what you need to know.

Why are pro-lifers watching this judicial election?

Wisconsin is the only state in the nation with a pre-Roe v. Wade abortion ban in effect, at least on paper. Wisconsin’s ban, which is contained in Section 940.04 of the Wisconsin Statutes and dates to 1849, allows abortion only to save the life of the mother. The state’s Democratic governor and attorney general have said they will not enforce the ban and are currently suing in an attempt to have it overturned.

The law was previously unenforceable following the Roe v. Wade decision in 1973, but Roe’s overturning last year allowed the statute to come into effect. So far, it has not been blocked in court, as has happened with pre-Roe bans in West Virginia and Michigan.

Pro-choice groups within and outside Wisconsin have identified the state Supreme Court race as the key to getting 940.04 overturned. Gov. Tony Evers, along with Wisconsin Attorney General Josh Kaul, announced a lawsuit last year to attempt to overturn the law, arguing that it has been superseded by subsequent legislation and cannot be enforced.

The lawsuit is likely to be ultimately decided by the state Supreme Court, which has had a 4-3 conservative majority for the past decade and a half. Pro-life advocates worry that should the state Supreme Court obtain a pro-choice majority, the state’s pre-Roe ban could be thrown out, as happened last year in neighboring Michigan.

In short, the ideological makeup of the Supreme Court following the April election is likely to determine whether abortion will remain outlawed or become legal in Wisconsin.

“The upcoming spring election will determine the balance of the Wisconsin Supreme Court and will likely determine the fate of not only 940.04 but pro-life laws in Wisconsin for years to come,” Gracie Skogman, legislative and public affairs director for Wisconsin Right to Life, told the National Catholic Register.

Beyond that, the makeup of the court will affect whether Wisconsin’s legislative and congressional maps will be redrawn, and influence how the state’s 10 electoral votes are awarded after the 2024 presidential election, the New York Times reported.

Who are the candidates?

In a Feb. 21 primary, Daniel Kelly and Janet Protasiewicz emerged as the two highest vote-getters, advancing them to the nonpartisan general election on April 4. Protasiewicz earned the most votes in the February primary and Kelly the second most. The ultimate winner will serve a 10-year term on the state Supreme Court.

The race is officially nonpartisan, so neither Protasiewicz nor Kelly is running as a Democrat or Republican. But both candidates have touted their ideological bona fides as well as their numerous endorsements.

Kelly is a former Wisconsin Supreme Court justice who served on the court from his appointment by then Gov. Scott Walker in 2016 until he was voted out in 2020. He describes himself as a “constitutional conservative” and on his campaign website charges that his opponents are “judicial activists who seek to impose their own political agenda on our state.”

Amid a contentious campaign, Kelly has earned the endorsement of three statewide pro-life groups — Wisconsin Family Action, Pro-Life Wisconsin, and Wisconsin Right to Life.

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In contrast, Protasiewicz has garnered endorsements from numerous top Democrats in Wisconsin. Protasiewicz currently is a judge for Branch 24 of the Milwaukee County Circuit Court in Wisconsin, having been elected to that court in 2014.

On abortion, Protasiewicz has spoken about her views in a televised ad wherein she says she believes “in a woman’s freedom to make her own decision on abortion.”

What have Catholic leaders said?

In a Feb. 14 newsletter, the Wisconsin Catholic Conference noted the upcoming spring primary election and reminded voters that as Catholics, “we are called to form our consciences in light of Church teaching.”

“Human reason tells us that the right to life is the first and fundamental right. Without life, none of our basic human rights — such as food, shelter, liberty — can be exercised,” the conference said in the newsletter.

“In addition, our Catholic faith holds that every human being, at every stage of life, is made in the image and likeness of God. When we encounter one another, we should do so with the understanding that we are encountering someone of transcendent worth, who like us is deserving of respect and protection from conception to natural death.”

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