What is Wisconsin Supreme Court candidate Daniel Kelly's record on abortion?

Former Wisconsin Supreme Court Justice Daniel Kelly has so far avoided talking about his personal views on abortion during his campaign for an open seat on the court.

Asked in February by a reporter with Madison NBC affiliate WMTV whether he thought Wisconsin’s 1849 law banning abortion should be repealed or upheld, Kelly demured.

“I stand on that issue the same place I stand on every other issue that has ever come before the court or ever will come before the court. I will decide that question based on the law to the extent it is consistent with our Constitution,” he said. “One of the commitments a jurist has to have is to have no preconceived notions on how they would rule in a case.”

Kelly, however, has a record on abortion, previously condemning the procedure in strong terms and maintaining of close ties to anti-abortion groups. His reluctance to directly address the issue is a window into how highly politicized issues such as abortion are shaping an off-year election that was as recently as 2006 a largely nonpartisan affair.

This is Kelly’s second run for the Wisconsin Supreme Court, which he was appointed to in 2016 by then-Gov. Scott Walker, a Republican. Kelly lost the seat in his first reelection bid in 2020 to Jill Karofsky, a Dane County judge who now votes with the court’s liberal wing.

This year, the stakes are higher than the were during Kelly’s last run. With conservative Justice Patience Roggensack’s retirement, liberals have a chance to win a majority on the court for the first time since 2008. That would open the door to momentous political changes in Wisconsin, particularly on abortion, which is currently inaccessible in the state due to the strict ban on the procedure contained in the 1849 law. Democratic state Attorney General Josh Kaul is challenging enforcement of the law, which lacks exceptions for cases of rape or incest, in a suit that is likely to reach the state’s highest court.

Kelly cites the Wisconsin Code of Judicial Conduct to justify his reticence on the subject of abortion, which bars judicial candidates from saying how they would rule on an issue. Regardless, the state’s most prominent anti-abortion groups see him as their candidate in the race.

Wisconsin Family Action, Pro-Life Wisconsin, and Wisconsin Right to Life, all hard-line anti-abortion groups that support the state’s ban, have endorsed Kelly. The former justice has relied on Wisconsin Right to Life’s support in the past. The Associated Press reported that Heather Weininger, the executive director of Wisconsin Right to Life, wrote a letter of support for his appointment to the state Supreme Court in 2016.

“Dan Kelly is someone who I have known professionally for many years and who has provided great counsel to Wisconsin Right to Life in legal manners, as well as to a previous employer of mine, and has done great work with the Federalist Society in Wisconsin,” Weininger says in the letter.

The Federalist Society was founded in part as a legal instrument to overturn Roe v. Wade, the 1973 U.S. Supreme Court decision that guaranteed a constitutional right to abortion. All six of the conservative justices who voted last year in Dobbs v. Jackson Women’s Health Organization to overrule Roe are members of the society.

Kelly told multiple outlets earlier this week he did not recall the work he did for Wisconsin Right to Life.

The group says that its policy is to only endorse candidates for office who “champion pro-life values and stand with Wisconsin Right to Life’s legislative strategy.”

In a radio interview, however, Kelly contested the idea that he was endorsed by the groups to uphold the state’s abortion ban, telling Milwaukee station WTMJ: “My understanding is that their endorsement is their endorsement of my judicial philosophy, not politics, right, not issues, but judicial philosophy.”

Wisconsin Right to Life told the American Independent Foundation that Kelly’s characterization was correct.

“Our efforts are focused on educating the pro-life base on the implications of this election and activating them to vote. We have a large grassroots network that extends to every corner of our state, that is assisting in these efforts,” Grace Skogman, the director of the group’s political action committee said.

But the organization would not be mistaken if it did in fact endorse Kelly for his pro-life values, at least according to a conservative blog he contributed to from 2012 to 2015. In a posting to “Hang Together,” the website, Kelly outlined his understanding of the politics and ethics of abortion. Mentioning the Democratic Party, the National Abortion Rights Action League, and what he incorrectly called the “National Organization of Women,” he wrote:

Each of these culturally-elite organizations has invested heavily, both in dollars and intellectual effort, in normalizing the practice of abortion, making it culturally acceptable. An abortion, of course, involves taking the life of a human being. And everyone involved in the subject knows it. … So we may safely charge them with knowingly favoring a policy that has as its primary purpose harming children. Why? To preserve sexual libertinism.

The Kelly campaign, Wisconsin Family Action, and Pro-Life Wisconsin did not return requests for comment.

Milwaukee Circuit Court Judge Janet Protasiewicz, the liberal candidate running against Kelly, has put abortion front and center in her campaign, airing ads declaring her support for abortion rights — “I believe in a woman’s freedom to make her own decision on abortion. It’s time for a change” she said in one of her first campaign ads — and attacking Kelly for his ties to anti-abortion groups.

Unlike Kelly, Protasiewicz argues that candidates for the state’s highest court ought to be explicit about their values.

Hers is a strategy that has proved successful for pro-abortion rights Democrats across the country, many of whom have enjoyed political gains by leaning into the issue in a reproductive health care landscape redefined by the Dobbs decision.

Planned Parenthood Advocates of Wisconsin, the reproductive rights group’s state political advocacy arm, endorsed Protasiewicz after her victory in the Feb. 21 primary. A spokesperson for the group told Reuters that PPAWI was spending more to back Protasiewicz than it had in any previous judicial race and was hiring door-to-door canvassers to support her.

According to the most recent campaign finance reports, Protasiewicz’s campaign has raised more than five times what Kelly’s has, in part thanks to out-of-state contributions. However, Kelly is backed by wealthy conservative donors, particularly Richard Uihlein, who has spent millions to support right-wing candidates in state supreme court races across the country.

The race has not been polled, but if turnout is in line with recent Wisconsin statewide races, the April 4 election will be a close one.

Published with permission of The American Independent Foundation.