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Gov. Tony Evers calls legislature to repeal 1849 abortion ban

Gov. Tony Evers said during a press conference at the State Capitol Building that he wants to “create a pathway to repeal Wisconsin’s abortion ban."
Posted at 9:19 AM, Sep 21, 2022

MADISON, Wis. — Gov. Tony Evers announced Wednesday that he is calling a special session of the Wisconsin legislature on October 5th, in order to create a pathway to repeal the state's 1849 law that bans abortion.

Evers wants to begin the process of amending Wisconsin’s constitution to allow residents to bring referendum questions to the ballot on any issue, not just abortion. These are known as direct ballot initiatives, which are currently not allowed in Wisconsin.

In every single special session Evers has called before, the Republican-controlled legislature has gaveled in and gaveled out with no discussion.

“I hear from people, independents and Republicans included, that are just appalled by the fact that we’re in this position,” said Evers during a press conference. “That we had 50 years of rights that suddenly disappeared overnight, and a legislature that is unwilling to even discuss it. That’s disgusting.”

He wants to “create a pathway to repeal Wisconsin’s abortion ban."

“Right now, today, when it comes to reproductive freedom, the will of the people isn’t the law of the land but it damned well should be, folks,” Evers said.

The goal, the governor said, is to restore the abortion and reproductive rights women had in Wisconsin before the U.S. Supreme Court struck down Roe v. Wade earlier this year. Since that court ruling, clinics have not been able to give abortions in the state.

RELATED: Clinics across state lines prepare for Wisconsin women to jump borders for abortions

Republicans maintain a majority in the Wisconsin State Assembly and have pushed back against Democrats' efforts to restore abortion rights in the state.

Wisconsin Assembly Speaker Robin Vos and Sen. Devin LeMahieu, both Republicans, called Evers' plan a "desperate political stunt."

"Governor Evers would rather push his agenda to have abortion available until birth than talk about his failure to address rising crime and runaway inflation caused by his liberal DC allies. Hopefully, voters see through his desperate political stunt," Vos tweeted Wednesday.

RELATED: Evers, Johnson hold slim leads in Wisconsin elections, Marquette poll finds

The governor said his constitutional amendment is in reaction to comments from Republican U.S. Sen. Ron Johnson who suggested holding a referendum to let voters decide how our state's abortion law is modified. Johnson is also running for reelection against Democrat Wisconsin Lt. Gov. Mandela Barnes.

“I heard it directly from Senator Johnson’s mouth, he said we should let the people take care of this,” said Evers. “I agree with U.S. Senator Ron Johnson. Now, there’s a sentence for you!”

Sen. Johnson sent TMJ4 this statement Wednesday:

"Once again, Democrats are seeking to divide the public by exploiting the profound moral issue of abortion by politicizing it before an election that should be focused on the disastrous results of their policies and governance. What I am hearing from Wisconsinites is that they are primarily concerned over how to cope with forty year high inflation, record gasoline prices, rising crime, baby formula shortages and open borders resulting in a flood of illegal immigrants and deadly drugs.

For almost fifty years the decision of nine unelected Justices in Roe vs Wade prevented a democratically derived consensus to be formed on the profound moral issue of abortion. The Dobbs vs Jackson decision will now allow that democratic process to unfold in each state to answer this fundamental question: “At what point does society have the responsibility to protect life?” Because of the profound nature of this decision, we should not rush the debate, but instead allow enough time for a thorough and thoughtful discussion."

Evers is running for reelection against Republican businessman Tim Michels. The latest Marquette University Law School poll found a statistical tie between Evers and Michels. The poll also found the majority of state residents support abortion rights. Michels has expressed his support for the 1849 ban, which has no exceptions for rape or incest.

TMJ4 reached out to Michels. His campaign spokesperson, Anna Kelly, sent us this statement:

"On the heels of the revelation that Tony Evers has released brutal murderers and rapists across Wisconsin, it's no surprise that he's desperate to talk about anything but his abysmal public safety record. Evers doesn't want this election to be a referendum on his job performance on crime, inflation, or education because he knows that people would reject his tired, old agenda."

In June the Republican-led Wisconsin Assembly rejected Evers' first call to repeal the abortion ban. The Associated Press reports that even if lawmakers meet on Oct. 5 for the special session, the soonest a referendum on abortion could appear on the ballot is in 2023.

The AP also reported Wednesday that unlike other states, Wisconsin does not allow voters or the legislature to place referendums on the ballot. Wisconsin law does allow the legislature to place constitutional amendments on the ballot but they must be approved in two consecutive legislative sessions and then be approved by voters on the ballot.

Read Gov. Evers' written announcement below:

Gov. Tony Evers today signed Executive Order #175 [] calling a special session of the Wisconsin State Legislature at 10 a.m. on Wed., Oct. 5, 2022, to create a pathway for Wisconsinites to repeal Wisconsin’s 1849-era criminal abortion ban, which—if a direct challenge [] to the ban brought by Gov. Evers and Attorney General Josh Kaul is unsuccessful—could ban abortion in nearly all instances in Wisconsin, even in cases of rape and incest. Gov. Evers’ announcement today is his most recent effort at restoring reproductive freedom in Wisconsin in the wake of the U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey, stripping millions of Wisconsinites and Americans of the reproductive rights and freedoms they had relied upon for nearly five decades.

The governor’s call comes as last week U.S. Sen. Ron Johnson (R-Wisconsin) newly suggested [] Wisconsin voters could challenge the state’s 1800s-era criminal abortion ban directly through a statewide referendum. However, unlike more than 20 other states in the United States, including Michigan, Illinois, and Ohio, Wisconsin’s current laws do not allow voters to change state law by referendum, and voters cannot introduce referenda or initiatives to be voted on by the people of Wisconsin. According to the Legislative Reference Bureau [], “Unlike a number of other states, Wisconsin does not have any statewide initiative process that would allow electors to propose new state laws or constitutional amendments through a petition and to compel a referendum vote.”

That is, there is no process by which Wisconsinites can vote to reject existing state statutes like the state’s existing 1849-era criminal abortion ban, which originated before the Civil War and at a time when Wisconsin women did not have the right to vote and, if it were to go into effect, would ban nearly all abortions in Wisconsin, including in cases of rape and incest.

“On the ceiling of the Governor’s Conference Room in the Capitol is a phrase I’ve often repeated over the last three years: ‘the will of the people is the law of the land.’ Well, right now in Wisconsin, when it comes to reproductive freedom, the will of the people isn’t the law of the land—but it damn well should be,” said Gov. Evers. “Today, I’m calling the Legislature into special session to create a pathway for Wisconsinites to be able to repeal our 1849-era criminal abortion ban and to ensure women across our state will go back to having the same rights now that they did the day before the U.S. Supreme Court overturned Roe v. Wade without having to wait for the courts.”

Gov. Evers’ plan announced today would create a pathway for Wisconsinites to directly challenge the state’s criminal abortion ban and repeal the archaic law, which has caused healthcare providers to largely cease abortion procedures and has left safe, legal abortion access for women in jeopardy as long as the ban is in litigation limbo awaiting clarity from the courts.

“As far as I’m concerned, the right of Wisconsinites to make their own reproductive healthcare decisions without interference from politicians is a fundamental freedom that shouldn’t have to be put to a vote—it was a right for nearly 50 years, it was a right until June 23rd, and it should still be a right today,” Gov. Evers continued. “But Legislative Republicans have left no other choice. If they aren’t going to uphold the will of the people, then the people of this state should have the right to take a stand at the ballot box. At the end of the day, Wisconsinites—and women in particular—were not only stripped of their reproductive freedom, but they currently don’t have a right to enact the change they need to protect that freedom without having to get permission from the Legislature. That’s just wrong, and it’s time for us to change that.”

Changes under the governor’s proposal would allow the majority of Wisconsinites who support safe and legal access to abortion to bypass the Legislature by voting directly to repeal Wisconsin’s 1849-era criminal abortion ban from state law. For a constitutional amendment to be adopted in Wisconsin, an identical amendment proposal must pass two consecutive legislatures before it is sent to Wisconsin voters to approve the amendment in an election thereafter.

The governor’s proposal would create a statewide binding referendum process through a constitutional amendment, allowing voters to file petitions with the Wisconsin Elections Commission (WEC) to hold a vote on proposed state laws and constitutional amendments or to repeal current state law. If a sufficient number of signatures by qualified electors are validated by WEC, a vote would be held at the next general election at least 120 days after the petition is filed. Under the proposal, a simple majority vote is required to decide the referendum.

Wisconsin Republicans have repeatedly refused to protect reproductive rights and repeal the state’s criminal abortion ban despite safe, legal access to abortion having broad, bipartisan support in Wisconsin. According to the Marquette Law School Poll, nearly 60 percent of Wisconsin voters support safe, legal access to abortion, and more than 60 percent oppose the decision to overturn Roe v. Wade.

Earlier this year, Gov. Evers joined legislative Democrats and Wisconsin Attorney General Kaul in calling on the Legislature [] to repeal Wisconsin’s archaic criminal abortion ban, and when legislators packed up and concluded their regular session work without taking action, the governor called the Legislature into a special session [] to press legislative action to protect reproductive freedom. Unfortunately, and despite broad public support, Republican Legislators gaveled in and out [] of the special session in moments without any discussion or debate, and as anticipated, only days later, the U.S. Supreme Court released their decision in Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey.

Following the U.S. Supreme Court’s decision in Dobbs, Gov. Evers and Attorney General Kaul announced [] a new lawsuit challenging the state’s abortion ban and naming three Republican legislative leaders as the defendants. However, Wisconsin Republicans delayed [] responding to the lawsuit for months, and in effort to prevent further delay at taxpayer expense, Attorney General Kaul last week [] named three district attorneys as new defendants in the suit.

Gov. Evers’ announcement today is a continuation of his vigorous defense against attacks on access to reproductive healthcare in Wisconsin. Over the course of the past three years, the governor has vetoed several bills passed by the Legislature, including several this biennium [], that would have restricted access to abortion, inserted politics into the personal and private conversations between patients and their healthcare providers and made it harder for doctors to provide medically accurate information and treatment. Many of these bills also sought to limit healthcare options for people seeking basic, necessary care, such as pregnancy care, cancer screening and prevention, sexually transmitted disease screening and treatment, and wellness exams.

Gov. Evers’ Executive Order #175 calls the Wisconsin State Legislature on Wed., Oct. 5, 2022, at 10 a.m., solely to act on LRB-6542/1 [] and LRB-6543/1 [], relating to reserving to the people the power of referendum to reject acts of the Legislature and the power of initiative to propose and approve at an election laws and constitutional amendment (first consideration).

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