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UW law expert: Ballot abortion question an example of ‘misleading’ advisory referendums


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MADISON, Wis. — One of the big topics on the ballot in this year’s election is abortion, not just in candidates’ platforms, but in a referendum question in Dane County. However, local experts said it’s deliberately misleading and a common tactic used by both parties.

On the bottom of Dane County’s midterm ballot, voters will be asked:

“Should Wisconsin statute 940.04, which bans abortion at any stage of pregnancy without exception for rape, incest, or health of the patient, be repealed to ensure legal access to abortion care?”

District 7 Supervisor Cecely Castillo wrote the question and said there’s no reason the abortion ban should stand.

But according to University of Wisconsin-Madison Law Professor Howard Schweber, “it makes it sound as though the law that’s being tested has no exceptions whatsoever. So it’s misleading.”

The 1849 abortion ban reads:

(5)This section does not apply to a therapeutic abortion which:

(a) Is performed by a physician; and

(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and 940.04(5) and

(c) Unless an emergency prevents, is performed in a licensed maternity hospital.

“The way the statute is written is not perfectly clear,” Schweber said.

“The opinion that’s being promoted [in the referendum] is that the Republicans are absolutists on the question of abortion, and the implications, of course, when they get power, an absolute ban on abortion or under all circumstances will take effect in Wisconsin,” he said.

According to Schweber, this is called an advisory referendum.

“It’s a poll designed to elicit a response in the people answering it, not for the sake of the poll, but in the hope of swaying their opinions,” he said.

It goes back to 2016, he said.

“Back then, the concern was it would be advantageous to have people in the position of Secretary of State because they exercise control over the wording of referendum questions. And the Republican Party recognized, apparently, well before the Democratic Party did, that’s a powerful position to be in.”

But the law professor said this question has already sent mixed messages that aren’t easy to clear up.

“I’ve talked to people who are confused who thought that the law was up for being either affirmed or struck down based on this referendum,” Schweber said. “If they thought they were participating in direct democracy, exercise to determine the fate of the abortion law, they might be shocked to discover that what they did, didn’t really matter.”

Ideally, Schweber said voters would go in knowing this tactic.

“There requires some knowledge of what a referendum question is, and the idea that there exists something called an advisory referendum, which is itself a bit of a learning curve, perhaps.”

So now, with more accurate, scientific political polls, he believes advisory referendums “have to go.”

“And it’s just one more among an apparently endless list of blows to people’s faith in the democratic process as it operates in our state and in our country,” Schweber said.

“And I really think that given the circumstances of election denial, and January 6, and all the things that are going on, you know, if anything, this is a time to be extra vigilant and bend over backwards to be transparent and to conduct our democratic operations in ways that will hopefully increase public confidence,” he said. “This doesn’t strike me as doing that.”

Fox 47 contacted District 7 Supervisor Cecely Castillo twice for an interview Wednesday. She declined but sent this statement:

“Health and life are two different things. There is a life exception but not a health exception. Pregnancy is complicated, so the question for a provider becomes if a woman risks permanent disability, loss of fertility, or other bodily function, but may survive, is that sufficient for a doctor to avoid prosecution? A physician should be able to take the health of a patient into consideration and provide the best care without risk of a felony conviction and jail time.”

In September, Gov. Tony Evers called a special session that would begin the process of changing the state’s constitution to allow the public to vote on whether to repeal the 1849 abortion law. In early October, Republican lawmakers who control both chambers of the state Legislature gaveled into and out of that session with no debate.

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