Whatever a “therapeutic abortion” is, I’d like one for my brain, please, after reading all these oppressive, ridiculously-worded state bans Republicans are trying to enforce on people.
Anti-abortion lawmakers in Wisconsin are currently embroiled in an ongoing legal battle against the state’s Democratic governor Tony Evers and attorney general Josh Kaul over an 1849 state abortion ban that precedes the Civil War and the 19th amendment. Evers and Kaul argue the 1849 ban is superseded by an 1985 state law protecting the right to abortion, while Republicans say now that Roe v. Wade has been overturned, the 1849 law should take effect, and allow only “therapeutic abortions” in cases when the pregnant person’s life is at risk. It’s not clear at all how that will be determined, or what cases in which an abortion wouldn’t be therapeutic if you literally needed one to save your life.
The 1849 statute is utterly wild, even at a time when states are tripping over each other to ban abortion without rape exceptions and spitballing bizarre justifications for this (most recently, Michigan’s Republican gubernatorial nominee claimed teen rape victims could be “healed” by the birth of their forced babies). The archaic law that Wisconsin Republicans are fighting to uphold defines abortion as the intentional killing of an “unborn child”—and this unborn child is defined as an embryo or fetus “from the time of conception until it is born alive.” The Milwaukee Journal Sentinel reports that Pro-Life Wisconsin wants to use the 1849 ban as an opening to “ban most common forms of contraception and birth control and prohibit in vitro fertilization,” all outcomes for which fetal personhood absolutely opens the door.
In other words, the law enshrines fetal personhood, not unlike the state’s dated Unborn Child Protection Act, or Act 292, which allows Wisconsin to take pregnant people into custody, assign a lawyer for their embryo or fetus (but not the pregnant person), and send the pregnant person to drug treatment, psychiatric hospitals, and even jail if they’re suspected of substance use.
It’s hard to know where to begin to unpack how utterly fucked this 1849 law is. Trying to describe its horrifying legal intricacies alone makes me long to surgically lobotomize myself with an exacto knife to save my own life—a “therapeutic abortion” for my brain, if you will.
As doctors have pointed out, the Wisconsin exception is too ambiguous as to what constitutes a threat to the pregnant person’s life and at what point doctors can legally intervene without facing prison-time to have real impact, as if the U.S. doesn’t already have the highest maternal mortality rate among wealthy countries.
“I do not nor do my patients want me to stop what I’m doing and think about what the judge would do: ‘Will the judge sentence me to jail if I were to perform an abortion?’” one doctor told ABC News. Another doctor who provided abortion care to a patient with a wanted pregnancy who learned she had cancer told Jezebel last month, “If that patient couldn’t get her chemotherapy because she’s forced to continue her pregnancy, she’s not going to die in that moment, but she probably will die much sooner. Maybe significantly sooner, decades sooner.”
Meanwhile, in Texas, the state’s attorney general Ken Paxton (presumably between all of the lawsuits charging him with corruption and fraud) is suing the Biden administration for directing hospitals to provide life-saving abortion care, regardless of whether their state’s abortion ban offers this exception. The idea that a pregnant person and full human being shouldn’t have to die over the warped politics of undemocratically-elected anti-abortion extremists is, apparently, too much to ask for!
Speaking of pregnant people as full human beings, Wisconsin’s 1849 statute conferring fetal personhood would like a word on that. Fetal personhood laws aren’t new—they exist in most states in the form of fetal homicide laws that were created to recognize the unborn fetus as an additional victim in all-too-common cases of homicide against pregnant people (tragically, a leading cause of death for this demographic often perpetrated by intimate partners, and a crisis that abortion bans inevitably worsen.) Yet prosecutors and local police departments routinely misapply these laws to criminally charge pregnant people who lose a pregnancy or self-induce an abortion, particularly targeting people of color suspected of substance use.
Wisconsin’s 1849 statute would inevitably lead to the investigation and criminalization of people who experience miscarriage, too—medication abortion pills simply induce an abortion, and when abortion is banned, nearly every pregnancy and pregnancy outcome would become a possible crime scene.
It really is that bad. Even with Roe in place and without bans like this in effect, cases of pregnancy criminalization have sharply increased, tripling in recent years due to increased political and cultural recognition of fetal personhood—the anti-abortion movement’s endgame. Now, Wisconsin’s dormant 1849 law could also criminally charge doctors who are suspected of offering abortion care knowing the procedure wasn’t a “therapeutic abortion.”
The state violence that fetal personhood inflicts on pregnant people is two-pronged: As National Advocates for Pregnant Women’s Dana Sussman has previously explained to Jezebel, when pregnant people’s “rights are secondary to the fetus, or at odds with the fetus, that lends to an environment in which violence—whether it’s state violence like imprisonment, or interpersonal violence—can be committed against pregnant people with far less accountability.”
Kaul is notably up for re-election this November, and has vowed to enforce neither Wisconsin’s 1849 statute, nor Act 292. “It’s my stance that not only should the Wisconsin Department of Justice not use its investigative or prosecutorial authority to investigate and prosecute violations of the the abortion ban, but also that DA offices, police departments, sheriff’s offices, also shouldn’t use their authority for that,” he previously told Jezebel in May. State resources, Kaul said, shouldn’t go toward “investigating people for having abortions.” This stance is in sharp contrast with Kaul’s opponent, Republican prosecutor Eric Toney, who vowed to enforce the 1849 law.
I’m exhausted from having to explain how awful all of this, and just how much is at stake on the state level these midterms. So please, to save my life and sanity right now, I’d just really like to lose the ability to read or think.