What counts as a life threatening reason for an abortion? Wisconsin doctors take on this tricky question to avoid penalties post-Roe

INTERVIEWER: Last week, a Bismarck judge temporarily blocked an abortion ban from taking effect in the state. But a trigger law passed by North Dakota lawmakers in 2007 dictates that the procedure should become illegal with the Supreme Court's decision earlier this summer to overturn Roe v Wade. In next-door Wisconsin, the Roe decision made abortions illegal.

We are continuing our series looking at abortion in neighboring states. Devi Shastri is a health and medical science reporter with the Milwaukee Journal Sentinel. She's on the line to give us the latest from Wisconsin. Welcome to the program. Thanks, Devi.

DEVI SHASTRI: Thanks for having me.

INTERVIEWER: Take us back to before that June Supreme Court decision. What were the abortion laws like in Wisconsin?

DEVI SHASTRI: Yeah. So before Wisconsin, there were some limitations on abortion. Or before the Roe was torn down, there was some limitations to the laws in Wisconsin. Namely, people had to wait 24 hours before they could get an abortion. They would have to do counseling. And that's state kind of directed counseling that they would have to do.

And then there was a limitation on seeking abortions after 20 weeks unless it was medically necessary in order to preserve the life or prevent irreversible impairment to the mother or if it was necessary in order to give the fetus the best chance to survive. Women were also required to get an ultrasound before they could get an abortion. And the provider had to kind of describe the image to the patient, but the patient did not have to look at it.

INTERVIEWER: So there were specific restrictions. And where does abortion stand legally right now?

DEVI SHASTRI: Right now, it is illegal. After Roe fell, Wisconsin reverted to a ban that was actually first put in place in 1849. So it is a very old law. And that law states that any doctor who performs an abortion can be charged with a felony unless it is in order to preserve the life of the mother. And doctors found violating this law can face up to six years in prison and $10,000 in fines.

INTERVIEWER: So what about women whose health is at risk? Who makes that decision?

DEVI SHASTRI: The doctors have to make that decision. And there is a lot of legal confusion around that part of the law, specifically, right now because a lot of OB/GYNs have been saying that there isn't a lot of clarity around what qualifies as life-threatening. Some who I've talked to have pointed to even mental health, saying what if my patient is suicidal because she-- and she specifically says it's because of her pregnancy? Does that count as life-threatening enough?

Or what if my patient has a chronic health condition that the pregnancy puts a threat on her heart or her lungs, and we know that it is a risk that she's not willing to take? Does that count as life-threatening enough? There's a lot of questions around that right now.

INTERVIEWER: Right. I read some of your stuff, and you wrote that health care providers are worried about the legalities. How has the ban changed health care in the state? Can you determine that yet?

DEVI SHASTRI: There's a lot of uncertainty right now and, I would say, tension among the doctors who I've talked to, the OB-GYNs I've talked to. So some people have said that this will have a chilling effect. That is kind of what I've heard from doctors since the law has changed, and that they're not sure what they can do. They're waiting for lawyers to answer their questions and trying to anticipate how they could be legally held responsible for things, not knowing kind of how that could play out. And it's causing concerns about delays to care.

For example, one of the other provisions in the law currently says that if two other doctors agree that the situation is life-threatening, then the doctor can perform an abortion. So you need three total doctors in order to do that. And it's unclear, is that only in the life-threatening situations, or is it in all situations? And so most doctors who I've talked to have been told to play it safe and make sure they have three doctors who sign off on any abortion procedures. And in rural areas, that becomes a big concern just because there is an OB/GYN shortage right now, in terms of just getting care for patients.

INTERVIEWER: Any moves in the legislature to clarify this law?

DEVI SHASTRI: No. So prior to the Dobbs decision, the governor, the Democratic governor, Tony Evers, called for a special session in the legislature in order to overturn the old ban. And that was met with inaction by the Republican-controlled state legislature.

So right now, everything is moving through the courts. There is a lawsuit that Governor Evers and the attorney general and others have filed, trying to argue that this ban is unenforceable. And just last week, the Republicans' leadership in the state legislature asked to dismiss the case. We're expecting that it will go up to the state Supreme Court and be figured out that way.

INTERVIEWER: As you know, Devi, Minnesota's been categorized as a safe haven state for people seeking abortions because abortion is still legal in Minnesota. You've reported that Illinois has taken in floods of patients from southeastern Wisconsin. Tell us more about your reporting on that. What have you seen?

DEVI SHASTRI: Yeah. So within weeks of Roe being overturned, Planned Parenthood of Illinois saw a tenfold increase in the number of Wisconsin patients seeking care in Wisconsin, or in Illinois, over the border. And that pretty much lines up with what we know about the numbers of people who were seeking abortions in Wisconsin prior to Roe. So it seems like a lot of people, especially that-- Madison and Milwaukee are highly populated and close to the Illinois border, it sounds like a lot of patients are going over there.

And that was kind of part of the planning that Planned Parenthood of Wisconsin was doing prior to this decision. So they have doctors, OB/GYNs who are now licensed to practice in Illinois. They have a clinic right across the border in Waukegan. We also have seen independent doctors who have gone and opened up clinics in Rockford, Illinois and elsewhere. So we've seen this kind of push and effort to get patients across the border for care.

INTERVIEWER: You know what I'm wondering, what do polls show about the issue among just Wisconsin voters? What are voters thinking about this?

DEVI SHASTRI: Yeah, so it's pretty similar to some of what we're seeing nationally, but a Marquette Law School poll from August 17th found that, overall, 60% of people oppose the decision to overturn Roe. That was definitely split on party lines. We saw 92% of Democrats opposed it and 28% supported it. And overall, we also see that 58% of Wisconsin voters, regardless of party, say that abortion should be legal in some or all cases.

INTERVIEWER: So what kinds of pro-choice groups are active in Wisconsin? What have they said about the decision? Any action they're planning to take?

DEVI SHASTRI: A lot of the public opposition and just action around abortion access rights in Wisconsin has been seen through Planned Parenthood and through kind of more organized groups in terms of that. But definitely as after the leak of the Supreme Court decision, we've been seeing a lot of kind of just ground-level activism and people from all kinds of groups just coming out to march. So I've covered a lot of protests and things like that. And then since the decision, there's been a lot of efforts to connect people with resources. So I see a lot of community-focused groups who are working to connect people with funding and transportation and just getting them information during this time so that they can seek out care if that's what they want.

INTERVIEWER: And those groups against legalized abortion, are they active, as well? Have they indicated what steps, future steps they could take?

DEVI SHASTRI: Definitely. The groups, we have a few main groups. One is Wisconsin Right to Life. And they have been pretty open about how they support the way that things are right now. And their main focus moving forward is supporting women who are carrying out pregnancies that are difficult to carry out. So they've called for more funding and support for crisis pregnancy centers, of which we have, I believe, more than 100 in Wisconsin. And those centers have been kind of criticized for being misleading, but also are seen by many in the state who are anti-abortion as a resource for women.

We also have another group that has said that they will be pushing for a removal of the exception for the health of the mother. And they would like to see it replaced with one that equally protects the life of the mother and the life of the child. And there's a lot of legal questions around that, and it's unclear how far that will go. But they've been very clear that they want to get rid of the exception for the life of the mother in our current law.

INTERVIEWER: All right. Devi, thank you so much for the information. We really appreciate your time.

DEVI SHASTRI: Definitely. Thanks for having me.

INTERVIEWER: Devi Shastri is a health and medical science reporter with the Milwaukee Journal Sentinel.