Disclaimer: The following blog post is not a reflection of the University of Wisconsin-Madison’s opinion on the overturning of Roe v. Wade.
By Emily Neis
On January 22, 1973, the United States Supreme Court ruled in Roe v. Wade that the United States Constitution supported the right to have an abortion. In this landmark decision, the Court held that a set of Texas statutes criminalizing abortion violated the constitutional right of privacy, which is guaranteed in the due process clause of the Fourteenth Amendment.[1] In 1992, a landmark decision in Planned Parenthood v. Casey reaffirmed the right to have an abortion.[2] This case established that state restrictions on abortion are unconstitutional if they place an “undue burden” on an individual seeking an abortion before the fetus is viable. These decisions did not materialize suddenly but emerged from decades of pro-choice activism and protest by groups across the country.
Since the decision of Roe v Wade in 1973, many cases narrowed the scope of this decision but never overturned it completely. This all changed in May 2022 when a draft of a majority opinion, written by Justice Samuel Alito, was leaked to political news sources.[4] This opinion stated that the Supreme Court intended to overturn both Roe v. Wade and Planned Parenthood v. Casey. This opinion was dated around February 2022 and solidified that the Court intended to address abortion law in the summer.
On June 24, 2022, the Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health Organization.[5] This ruling upheld Mississippi’s ban on abortion at fifteen weeks of pregnancy, effectively ending the federal constitutional right to abortion. By overturning Roe, the Supreme Court erased half a century of precedent. This historic decision has changed abortion law across the United States. Some states put in place trigger laws that banned abortion immediately while others are still debating whether to pass abortion restrictions.
Take, for instance, the state of Wisconsin. Wisconsin is one state of many that contains a pre-Roe ban on abortion. Wisconsin first addressed abortion in 1849, when lawmakers enforced a general prohibition on abortion after “quickening,” providing one exception to preserve the life of the mother if necessary.[6] Although changes to this statute have been attempted over time, the broad prohibition on abortion still remains currently under Wis. Stat. § 940.04.[7] After Roe was passed, this statute was unenforceable. However, Dobbs may affect this enforceability, and Wisconsin legislators have already tried to prohibit abortion.
The Speaker and the Majority Leader of the Wisconsin Legislature have already made a declaratory judgment that the pre-Roe ban should be enforced. This led to the Wisconsin Attorney General filing a lawsuit “seeking a declaratory judgment that the 1849 pre-Roe criminal abortion ban is unenforceable.”[8] It is predicted that Wisconsin legislators will continue to challenge abortion laws. Wisconsin is considered a hostile state for reproductive rights and the next few months will likely determine abortion access, especially after the November 8th election. Because Wisconsin is so divided on this issue, abortion will continue to be a challenge, not only legally but politically and socially as well.
The overturning of Roe v Wade was a massive attack against civil rights, generating activism across the country. After the decision was announced, protestors began to gather almost immediately. Outside of the Supreme Court, thousands of demonstrators began to gather, vocalizing their frustration and sadness over the Dobbs decision.[9] On the other end of the spectrum, small groups of anti-abortion activists celebrated the end of the federal guarantee of access to safe and legal abortions. Thousands of Americans took to the streets across major American cities as well. In Chicago, a crowd of 3,000 marchers took to the streets of downtown. Signs reading “My Mom Already Marched For This” could be seen among the crowd.[10] In Madison, hundreds of protestors gathered outside the capitol, including many UW-Madison students.
The mass mobilization of protests after Dobbs characterizes the general perception of abortion among Americans. Roughly eight out of ten Americans support abortion rights and opposed the reversal of Roe v. Wade.[12] The Supreme Court’s decision generally does not reflect the majority of the citizens it governs. A sense of disappointment and hopelessness has grown from this decision. The current situation may appear bleak to some, but sustained activism in support of reproductive rights has led numerous states to enshrine abortion access into law, such as Massachusetts.[13] Dobbs highlights the importance of state-based activism that can lead to change over time.
Looking back at abortion movements before Roe highlights how mass mobilization has been and continues to be effective in battling encroachments on rights. Effective protesting requires a clear strategy for organizing communities and building pressure on political elites.[14] Movements are more effective when they contain multiple aspects of nonviolent resistance beyond just symbolic protest alone.[15] Noncooperation, for instance, helps build more instant pressure. As seen in Wisconsin, the Attorney General refused to see the outdated statute prohibiting abortion from the 19th century implemented into law. One last important tool is the mobilization of voters to elect pro-choice officials into government. American participation in their civic duty as voters has increased in recent years and continued mobilization will only grow in importance as states determine their own abortion laws.
The legal history of abortion law in the United States is complex and loaded. The overturning of Roe v. Wade was a historic reversal that infringed on women’s reproductive rights and resulted in mass protests across the country. These events go to show the importance of mobilization and how it will help determine the future of women’s rights.
[1] Peter Hoffer and N.E. Hull, “The Decision in Roe, 1971-1973” in Roe v Wade: The Abortion Rights Controversy in American History (Lawrence: University Press of Kansas, 2021), 135,
[2] Leslie Reagan, When Abortion Was a Crime: Women, Medicine and Law in the United States, 1867-1973 (Berkeley: University of California Press, 1997), 251.
[3] Dylan Brogan, “Madison Shows Up,” The Isthmus, May 4, 2022.
[4] Nora Delaney, “Roe v. Wade has been overturned. What does that mean for America?” Kennedy School of Government, Harvard University, June 28, 2022.
[5] “Historical Abortion Law Timeline: 1850 to Today,” Planned Parenthood Action Fund, September 2021.
[6] Madeline Kasper, “Brief History of Abortion Laws in Wisconsin,” (Legislative Reference Bureau Reports, Madison, 2022, Vol. 6, No. 4, 8.
[7] Ibid.
[8] “Gov. Evers, AG Kaul Announce Direct Legal Challenge to Wisconsin’s 1800s-Era Criminal Abortion Ban,” Wisconsin Department of Justice, June 28, 2022.
[9] Shawn Hubler, “Thousands Protest End of Constitutional Right to Abortion,” The New York Times, July 1, 2022.
[10] Ibid.
[11] Ted Eytan, “2022.06.24 Roe v Wade Overturned – SCOTUS, Washington, DC USA 175 143227,” Flickr.
[12] Lydia Saad, “Where Do Americans Stand on Abortion?” Gallup, July 29, 2022.
[13] Delaney.
[14] Ibid.
[15] Ibid.