Here’s an odd fact that I don’t recall hearing before. Were you aware that Wisconsin has had a law on the books banning almost all abortions since 1849? Even after Roe v Wade was decided, the law was never repealed. It simply became unenforceable. But now, after Dobbs, the law is technically back in effect. This has captured the attention of the state’s Governor, Tony Evers, along with his state Attorney General and other Democrats. Evers is facing a tough reelection bid this year and he must believe that the abortion question will be a political winner for him because he decided to seize it with both hands over the weekend. He promised to work to ensure that the law would not be enforced on his watch, but he also went one step further. He said that if any doctor was charged under the law, he would grant them clemency. (NBC News)
Wisconsin Gov. Tony Evers, a Democrat, vowed over the weekend to grant clemency to anyone charged under the state’s 1849 law banning most abortions.
That law, enacted more than a century before Roe v. Wade, has remained on the books in the state and has technically retaken effect following the Supreme Court ruling Friday overturning the landmark case.
Evers, Wisconsin Democratic Attorney General Josh Kaul and several county district attorneys in the state have said they would refuse to enforce it, but it remains possible that other officials — such as other district attorneys and newly elected state lawmakers — could enforce it now or in the future. Evers and Kaul are both up for re-election this fall, and both are facing tough races.
Governors are entitled to grant clemency for all manner of offenses, and if Evers were to do this there is little that could be done to stop him. Of course, that assumes that anyone is actually going to bring charges against a doctor this year, which seems far from certain. But his promise exposes yet another case of the executive or legislative branches of the government at any level coming into conflict with the judicial branch, and that’s a problem.
From Joe Biden’s criticism of the Supreme Court to situations like the one we’re seeing in Wisconsin, the system simply isn’t working as intended by the Founders. Laws are passed as needed by the legislators elected by the voters. The executive branch has the responsibility to enforce those laws. When asked to do so, the judicial branch reviews the laws to ensure they are constitutional. It’s really supposed to be just that simple.
But now we have the executive branch, both at the federal level and in multiple states, refusing to enforce existing laws and undermining the judicial branch by questioning their rulings, lessening people’s faith in the democratic process. And in the case of Governor Evers, even if law enforcement attempts to enforce this particular law and a judgment is rendered by a jury of the accused’s peers, the Governor is announcing that he will preemptively cancel that process in all such cases before he’s even been presented with an opportunity to review each case.
If the Governor doesn’t want to see this law enforced there is a way to ensure that doesn’t happen. And this applies to any law in his state, not just this Civil War-era abortion law. Convince a sufficient number of voters that the law needs to be repealed and encourage them to have their state legislatures do so. Then he can sign the bill doing away with the law and the problem will be resolved. But if there is insufficient consensus among the voters that the law needs to be removed and he thwarts it across the board anyway, you have a problem. That would be an example of blatant autocracy and a rejection of the democratic process.
Remind me again who is undermining democracy in the United States today? This is going on in far too many places and it involves issues ranging from abortion to gun control and beyond. (In New York, the Governor and the state legislature are already calling a hastily arranged session to try to thwart the Bruen decision.) If this situation fails to alarm you, I would suggest that you’re not seeing the big picture. This is about more than simply one policy or law. If you are in the majority and figure out a way to game the system in your favor, the shoe will eventually be on the other foot and your political adversaries will follow your example. We’ve seen the same scenario play out with the fight over the filibuster in the Senate. And it’s not going to end well, I fear. If the Democrats continue down this path, the shoe may be on the other foot far sooner than they might believe.