Limits on Abortion

Last August Kansas voters rejected a constitutional amendment that would have made abortion illegal there. That proposal went down 41% – 59%. Liberals rejoiced.

Then only three months later those same voters elected Kris Kolbach, a hard-right election denier, to be their Attorney General and they returned overwhelming majorities of conservative Republicans to their Legislature and Congressional delegation. Just this week that Legislature passed bills that can fairly be characterized as anti-transgender.

That should be a cautionary tale for Wisconsin Democrats who might be tempted to think that the ten-point victory of liberal Judge Janet Protasiewicz in her bid for the Supreme Court is some indication of a broader liberal swing in the state.

To be clear, I am as happy as any pro-choice voter about Protasiewicz’s win. But my mission today is to curb your enthusiasm. 

Because the more telling result from Tuesday was the state Senate contest in the Milwaukee suburbs. There, a seat held for decades by Republican Sen. Alberta Darling of River Hills was up for grabs. Darling’s margin of victory in the last two elections had gone from 12 points to only five. The Democrats had a very good candidate in Jodi Habush Sinykin and her opponent was a bit of a nut, suggesting that he might vote to impeach Protosiewicz before she even took office. Democrats outspent Republicans two-to-one. The main issue was abortion just as it had been in the Supreme Court race and Habush Sinykin was on the right side of that question among generally pro-choice suburban voters. Turnout was extraordinarily high, which both parties believe favors Democrats, though the evidence is that it probably doesn’t. 

And yet she lost. To be sure it was a close race with Rep. Dan Knodl (R- Germantown) eking out a margin of about 1,200 votes. Still, it was a race Democrats should have won. It suggests that even the powerful abortion issue cannot reliably deliver swing districts to Democrats. If the Democrats are ever going to take back the Legislature, even under fair maps, they have to win districts like this one. 

There are more signs that the state has not suddenly shifted to the left. Voters statewide approved a tough-on-crime constitutional amendment that allows judges to take into account a defendant’s criminal history and other factors when setting bail. And they approved an advisory referendum supporting work requirements for welfare recipients. The bail amendment passed two-to-one while the welfare question won with 80% of the vote. Both margins were larger than Protasiewicz’s 10-point win. 

All of which is to say that Wisconsin remains a purple state. Protasiewicz won because her campaign made it a simple up or down vote on abortion, just like it had been in Kansas last August. About two-thirds of us support abortion rights and 85% support that right in cases of rape or incest, something that the 1849 anti-abortion law does not allow. 

But that relatively liberal view on reproductive rights does not necessarily transfer to other things like crime, welfare, education or social issues. 

When she takes her seat in August, Protasiewicz will join a court majority that will likely find a way to redraw legislative maps in time for the 2024 elections. But that is no guarantee of success for Democrats. Even Gov. Tony Evers’ People’s Maps Commission drew boundaries that projected a 55-44 Assembly majority for Republicans. Better than the 64-35 margin they enjoy now, but still a built-in disadvantage for Democrats. 

That’s because Democrats cluster in a few places making it hard to draw competitive districts, even when that is the goal. And legally, that is not the goal. Districts need to be as compact as possible and they need to keep communities of interest together as much as they can and they can’t be set up to deny minority representation, but competitiveness between the parties is not a legal criteria. 

So, even a liberal court cannot hand the Legislature to Democrats. They’ll have to earn it and earn it in a state that is pro-choice but otherwise not all that liberal. 

And then there’s the irony of needing to be careful what you wish for. Assuming the new liberal majority on the court restores abortion rights, that will pretty much rob the Democrats of their best issue. For awhile abortion masked the deficiencies in the Democratic Party, but once that issue is resolved voters will focus back on everything they don’t like about Democrats.

There are a lot of people in my party who want to build their whole electoral strategy for 2024 around abortion. Based on Tuesday’s results here and what happened in Kansas last year, I’m skeptical that that will work. The party’s need to move back to the center remains.

A version of this essay appeared in Isthmus.