Abortion once more plays a key role in a state political fight, this time in Wisconsin's court race

MILWAUKEE (AP) — As the candidates for a Wisconsin Supreme Court seat squared off in a recent debate before early voting, one issue came up first and dominated at the start.

“Let’s talk about abortion rights,” the moderator said.

The winner of the April 1 election could hold the power to determine the fate of any future litigation over abortion because the outcome of the race for a vacancy on the state's highest court will decide whether liberals or conservatives hold a majority.

Abortion has become a central plank of the platform for the Democratic-backed candidate, Dane County Judge Susan Crawford, in part because of its effect on voter turnout, although to a lesser extent than during a heated 2023 state Supreme Court race that flipped the court to a liberal majority. Brad Schimel, a former state attorney general, is the Republican-supported candidate.

“Abortion of course remains a top issue,” said Charles Franklin, a Marquette University political scientist. “But we haven’t seen either candidate be as outspoken on hot-button issues as we saw in 2023.”

Democrats are hoping voters will be motivated by the potential revival of an abortion ban from 1849, which criminalizes “the willful killing of an unborn quick child.” The Wisconsin Supreme Court is currently deciding whether to reactivate the 175-year-old ban.

Planned Parenthood of Wisconsin filed a separate lawsuit in February asking the court to rule on whether a constitutional right to abortion exists in the state.

The 19th century law was enacted just a year after Wisconsin became a state, when lead mining and the lumber industry formed the bedrock of the state’s economy as white settlers rushed into areas left vacant by forced removals of Native American tribes.

It also was a time when combinations of herbs stimulating uterine contractions were the most common abortion method, said Kimberly Reilly, a history and gender studies professor at the University of Wisconsin-Green Bay.

“During this time, there were no women in statehouses,” Reilly said. “When a woman got married, she lost her legal identity. Her husband became her legal representative. She couldn’t own property in her name. She couldn’t make a contract.”

This is the latest instance of long-dormant restrictions influencing current abortion policies after the U.S. Supreme Court in 2022 overturned Roe v. Wade, which had granted a federal right to abortion.

The revival of an 1864 Arizona abortion law, enacted when Arizona was a territory, sparked a national outcry last year. Century-old abortion restrictions passed by all-male legislatures during periods when women could not vote — and scientific knowledge of pregnancy and abortion were limited — have also influenced post-Roe abortion policies in Alabama, Arkansas, Michigan, Mississippi, Oklahoma, Texas and West Virginia.

Those laws tend to be more severe. They often do not include exceptions for rape and incest, call for the imprisonment of providers and ban the procedure in the first few weeks of pregnancy. Some have since been repealed, while others are being challenged in court.

During the state Supreme Court debate March 12, Crawford declined to weigh in directly on the 1849 abortion case but promoted her experience representing Planned Parenthood of Wisconsin and “making sure that women could make their own choices about their bodies and their health care.” In an ad released Wednesday, she accused Schimel of not trusting “women to make their own healthcare decisions.”

Schimel calls himself “pro-life” and has previously supported leaving Wisconsin’s 1849 abortion ban on the books. He dodged questions about abortion during the debate, saying he believes the issue should be left up to voters, although Wisconsin does not have a citizen-led ballot initiative process, which voters in several other states have used to protect abortion rights.

Anthony Chergosky, a University of Wisconsin-La Crosse political scientist, said Schimel has been “borrowing from the Republican playbook of avoiding the issue of abortion” by leaving the question to voters in individual states.

The message has still gotten across to many Democratic voters, who cited abortion as a top issue while waiting in line for early voting this past week.

Jane Delzer, a 75-year-old liberal voter in Waukesha, said “a woman’s right to choose is my biggest motivator. I’m deeply worried about what Schimel may do on abortion.”

June Behrens, a 79-year-old retired teacher, spoke about a loved one’s abortion experience: “Everyone makes their own choice and has their own journey in life, and they deserve that right.”

Republican voters primarily cited immigration and the economy as their top issues, essentially the same ones that helped propel Republican Donald Trump's win over Democratic Vice President Kamala Harris last November in the presidential election. But others said they also wanted conservative social views reflected on the court.

Lewis Titus, a 72-year-old volunteer for the city of Eau Claire, said restricting abortion was his top issue in the Supreme Court race: "I believe that Brad Schimel is the one to carry that on.”

While it's one of the key issues this year, abortion played a much larger role two years ago, when a race for Wisconsin’s highest court demonstrated how expensive and nationalized state Supreme Court races have become.

This year’s campaigns have focused primarily on “criminal sentencing and attempting to paint one another as soft on crime,” said Howard Schweber, a University of Wisconsin-Madison political science professor emeritus.

Crawford also has tried to make the race a referendum on Trump after his first months in office and tech billionaire Elon Musk, who is running Trump’s massive federal cost-cutting initiative and has funded two groups that have together spent more than $10 million to promote Schimel.

“Two years ago, abortion was a hugely mobilizing issue, and we saw that clearly in the lead-up to the election,” Schweber said. “We’re seeing some of this but not to the same extent, which really makes no sense. The issues and stakes are exactly the same.”

The decision to elevate other issues might be the result of anxiety among Democrats that abortion may not resonate as deeply as they once believed after significant election losses in November, despite Harris using abortion as a pillar of her campaign, several Wisconsin politics experts said.

Franklin, the political scientist, said he believes abortion will motivate Democrats, but the issue may not rank high in the priorities of independent voters, who he says will be central to the race's outcome.

“In the early days after Roe v. Wade was overturned, it was still a very hot issue for voters,” he said. “But as states have codified their abortion laws, the issue doesn’t seem to motivate voters to the same extent. In the fall, many Democrats believed abortion was still this magic silver bullet and would win them the presidential and Senate races. But the outcomes didn’t seem to support that.”

Associated Press video journalist Mark Vancleave in Eau Claire, Wisconsin, contributed to this report.

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Wisconsin Supreme Court candidates Brad Schimel and Susan Crawford are seen before a debate Wednesday, March 12, 2025, in Milwaukee. (AP Photo/Morry Gash)

A voter casts a ballot during early voting in Waukesha, Wis., Tuesday, March 18, 2025. (AP Photo/Jeffrey Phelps)

People cast their ballots during early voting in Waukesha, Wis., Tuesday, March 18, 2025. (AP Photo/Jeffrey Phelps)

A voter casts a ballot during early voting in Waukesha, Wis., Tuesday, March 18, 2025. (AP Photo/Jeffrey Phelps)

A sign along a street in Milwaukee, Wis., Tuesday, March 18, 2025. (AP Photo/Jeffrey Phelps)

Wisconsin Supreme Court candidates Brad Schimel and Susan Crawford participate in a debate Wednesday, March 12, 2025, in Milwaukee. (AP Photo/Morry Gash)

A man places his ballot in a box during early voting in Waukesha, Wis Tuesday, March 18, 2025. (AP Photo/Jeffrey Phelps)

Wisconsin Supreme Court candidates Brad Schimel and Susan Crawford participate in a debate Wednesday, March 12, 2025, in Milwaukee. (AP Photo/Morry Gash)

Wisconsin Supreme Court candidates Brad Schimel and Susan Crawford participate in a debate Wednesday, March 12, 2025, in Milwaukee. (AP Photo/Morry Gash)

WASHINGTON (AP) — The Catholic Church in Oklahoma wants taxpayers to fund an online charter school that “is faithful to the teachings of Jesus Christ.” The Supreme Court could well approve.

St. Isidore of Seville Catholic Virtual School would be the nation's first religious charter school. A ruling from the high court allowing public money to flow directly to a religious school almost certainly would lead to others.

Opponents warn it would blur the separation between church and state, sap money from public schools and possibly upend the rules governing charter schools in almost every state.

The court hears arguments Wednesday in one of the term's most closely watched cases.

The case comes to the court amid efforts, mainly in conservative-led states, to insert religion into public schools. Those include a challenged Louisiana requirement that the Ten Commandments be posted in classrooms and a mandate from Oklahoma’s state schools superintendent that the Bible be placed in public school classrooms.

Conservative justices in recent years have delivered a series of decisions allowing public money to be spent at religious institutions, leading liberal Justice Sonia Sotomayor to lament that the court “continues to dismantle the wall of separation between church and state that the Framers fought to build.”

The justices are reviewing an Oklahoma Supreme Court decision last year in which a lopsided majority invalidated a state board’s approval of an application filed jointly by two Catholic dioceses in Oklahoma.

The K-12 online school had planned to start classes for its first 200 enrollees last fall, with part of its mission to evangelize its students in the Catholic faith.

Oklahoma’s high court determined the board’s approval violated the First Amendment’s Establishment Clause, which prohibits the government from making any law “respecting an establishment of religion.”

The state board and the school, backed by an array of Republican-led states and religious and conservative groups, argue that the court decision violates a different part of the First Amendment that protects religious freedom. The Free Exercise Clause has been the basis of the recent Supreme Court decisions.

“A State need not subsidize private education,” Chief Justice John Roberts wrote in one of those decisions in 2020. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The case has divided some of the state’s Republican leaders, with Gov. Kevin Stitt and State Superintendent of Public Instruction Ryan Walters supporting the concept of using public funds for religious schools, while Attorney General Gentner Drummond has opposed the idea and sued to overturn the virtual charter school board’s approval of St. Isidore.

A key issue in the case is whether the school is public or private. Charter schools are deemed public in Oklahoma and the other 45 states and the District of Columbia where they operate.

They are free and open to all. Just under 4 million American schoolchildren, about 8%, are enrolled in charter schools.

“Charter schools no doubt offer important educational innovations, but they bear all the classic indicia of public schools,” lawyers for Drummond wrote in a Supreme Court filing.

Those include that they receive state funding, must abide by antidiscrimination laws and must submit to oversight of curriculum and testing. But the schools also are run by independent boards that are not part of local public school systems.

“Charter schools are called public schools, but they’re totally different entities,” said Nicole Garnett, a University of Notre Dame law professor who is a leading proponent of publicly funded religious charter schools. Other Notre Dame professors are part of the St. Isidore legal team.

If the court finds the school is public, or a “state actor,” it could lead to a ruling against St. Isidore. If instead it determines that the school is private, the court is more likely to see this case as it did the earlier ones in which it found discrimination against religious institutions.

That the court even agreed to take on the issue now might suggest that a majority is inclined to side with St. Isidore.

The Oklahoma court is the only one that has ruled on religious charter schools and only eight justices are hearing the case. Justice Amy Coney Barrett recused herself without explanation. Barrett previously taught law at Notre Dame and is close friends with Garnett.

The current court is very familiar with private and, especially, religious education. Six justices attended Catholic schools as children and almost all the children of the justices go or went to private schools, including some religious ones.

Walters, the state schools superintendent, sees the St. Isidore case as “the next frontier” in school choice for parents. He has been an unabashed critic of the separation of church and state and sought to infuse more religion into public schools.

“I see it very clearly, that there’s been a war on Christianity and our schools have been at the epicenter of that,” said Walters, a former high school history teacher elected in 2022 on a platform of fighting “woke ideology” in public schools and banning certain books from school libraries.

“We’re going to give parents more rights in education than anywhere in the country, and that means a free ability to choose the school of your choice, whether it’s a religious education, whether it’s a charter school, public school, home school, all of the above.”

The idea of using public money to fund religious schools is antithetical to the Constitution, said Rachel Laser, president and CEO of Americans United for Separation of Church and State.

“This is religious public education, fully and directly funded by taxpayers. It’s as abject a violation of religious freedom as they come, because it forces taxpayers to fund the heart of religion, religious education for religion that’s not their own,” Laser said.

A group of Oklahoma parents, faith leaders and a public education nonprofit that also sued to block the school argue that religious charter schools in their state would lead to a drop in funding for rural public schools.

St. Isidore would lead to other religious charter schools, said Erika Wright, a mother whose two school-age children attend a rural school district in Cleveland County. "And all of those schools would be pulling from the same limited pot of money that we have for our current brick-and-mortar schools across the state.”

A decision is expected by early summer.

Murphy reported from Oklahoma City.

Erika Wright, a mother whose two school-age children attend a rural school district in Cleveland County waters her garden at her home in Noble, Okla., on Tuesday, April 15, 2025. (AP Photo/Nick Oxford)

The Archdiocese of Oklahoma City is seen on Thursday, April 17, 2025 in Oklahoma City, Oklahoma. (AP Photo/Nick Oxford)

Erika Wright, a mother whose two school-age children attend a rural school district in Cleveland County poses for a portrait at her home in Noble, Okla., on Tuesday, April 15, 2025. (AP Photo/Nick Oxford)

A cross sits atop the Archdiocese of Oklahoma City on Thursday, April 17, 2025 in Oklahoma City, Oklahoma. (AP Photo/Nick Oxford)

The Archdiocese of Oklahoma City is seen on Thursday, April 17, 2025 in Oklahoma City, Oklahoma. (AP Photo/Nick Oxford)

FILE - The Supreme Court is seen on Capitol Hill in Washington, Dec. 17, 2024. (AP Photo/J. Scott Applewhite, File)