1995 - 1996 LEGISLATURE
October 4, 1995 - Printed by direction of Senate Chief Clerk.
1An Act to amend
48.375 (4) (a) 1. and 448.02 (3) (a); to repeal and recreate
46.245 and 253.10; and to create
69.186 (1) (j), 441.07 (1) (f) and 457.26 (2) (gm) 3
of the statutes; relating to: expanding requirements for a woman's informed
4consent for performance or inducement of an abortion and for consent to a
5minor's obtaining an abortion and providing a penalty.
Analysis by the Legislative Reference Bureau
The text of Engrossed 1995 Assembly Bill 441 consists of the following
documents adopted in the assembly on September 28, 1995: Assembly Substitute
Amendment 1 as affected by Assembly Amendments 19, 21 and 40. The text also
includes the September 19, 1995, chief clerk's corrections to the substitute
Content of Engrossed 1995 Assembly Bill 441:
Under current law, before performing an abortion that is otherwise permitted
by law, unless an emergency requires performance of an abortion because
continuation of the pregnancy poses an immediate threat and grave risk to the life
and health of the woman, the attending physician or a person who is assisting the
attending physician must verbally provide the pregnant woman with accurate
information on all of the following:
1. Whether or not the woman is pregnant.
2. The number of weeks that have elapsed from the probable time of conception.
3. The availability of public and private agencies and services to provide birth
control information and to assist the woman during pregnancy and after childbirth,
if the woman chooses not to have an abortion.
4. For minors, the availability of services from a county department of social
services or human services to assist a minor in seeking consent for the abortion or
in petitioning a court for a waiver of the consent requirement.
5. Any particular risks associated with the pregnancy and with the abortion
technique to be employed.
The attending physician or person who is assisting the attending physician may
verbally provide the woman with accurate information on the probable physical
characteristics of the fetus or unborn child at the gestational point of development
of the fetus or unborn child at the time that the abortion is to be performed. After
the required information is provided, the pregnant woman must sign a statement
acknowledging that she has received the information and stating that she consents
to the abortion.
This bill modifies and expands the requirements for obtaining informed
consent prior to the performance of otherwise-lawful abortions and applies the
modified and expanded requirements to both adults and minors who are seeking
abortions. Under the bill, unless a medical emergency (as defined in the bill) exists,
the physician who is to perform or induce the abortion or any other qualified
physician must, at least 24 hours before the abortion is performed or induced, in
person orally inform the woman and, if the woman is a minor and has not obtained
a judicial waiver, the individual who is also giving consent for the abortion for the
minor, of all of the following, in addition to the requirements of current law:
1. The name of the physician who will perform or induce the abortion.
2. The probable anatomical and physiological characteristics of the unborn
child at the time that the information is given.
3. The details of the medical or surgical method that will be used in performing
or inducing the abortion.
4. That fetal ultrasound imaging and auscultation of fetal heart tone services
are available that enable a pregnant woman to view the image or hear the heartbeat
of her unborn child and how the woman may obtain these services if she desires to
5. That if, in the reasonable medical judgment of the physician, the woman's
unborn child has reached viability, the physician is required to take all steps
necessary under current law to preserve and maintain the life and health of the child.
6. Any other information that a reasonable patient would consider material
and relevant to a decision of whether or not to carry a child to birth or to undergo an
7. That the woman may withdraw her consent to have an abortion at any time
before the abortion is performed or induced.
8. That the woman is not required to pay for performance or inducement of the
abortion until at least 24 hours have elapsed after provision of the information.
The bill deletes requirements for provision of information on the availability of
services to assist a minor in seeking consent for the abortion or in petitioning a court
for a waiver of the consent requirement. The bill also modifies the requirement for
the provision of information on the medical risks associated with the abortion to
require mention, if medically applicable, of the risks of infection, psychological
trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed
abortion, danger to subsequent pregnancies and infertility.
In addition, under the bill, at least 24 hours before the abortion is performed
or induced, the physician who is to perform or induce the abortion, another qualified
physician or a qualified person assisting the person (who is required, under the bill,
to be a certified social worker, a physician assistant or a licensed registered nurse)
must in person orally inform the woman and, if the woman is a minor, the individual
who is also giving consent for the abortion for the minor, of all of the following, in
addition to requirements under current law:
1. That benefits for prenatal care, childbirth and neonatal care may be
available under the medical assistance program.
2. That the father of the unborn child must assist in the support of the child,
3. That the woman has a legal right to continue her pregnancy and keep the
child, place the child with a relative for adoption, place the child in foster care or
petition the court for placement of the child for adoption in the home of a nonrelative.
4. That the woman and, if the woman is a minor, the individual who is also
giving consent for the abortion for the minor have the right to receive and review
certain printed material, provided by the state, free of charge, that describes the
unborn child and lists agencies that offer alternatives to abortion. The physician or
qualified person must physically give current, updated materials to the woman and,
if the woman is a minor and has not obtained a judicial waiver, to the individual who
is also giving consent for the abortion for the minor.
5. That if the woman has received a diagnosis of disability for her unborn child,
that the printed materials contain information on community-based services and
financial assistance programs for children with disabilities and their families,
information on support groups for people with disabilities and parents of children
with disabilities and information on adoption of children with special needs.
6. That if the woman asserts that her pregnancy is the result of sexual assault
or incest, the printed materials contain information on counseling services and
support groups for victims of sexual assault and incest and legal protections
available to the woman and her child if she wishes to oppose establishment of
paternity or to terminate the father's parental rights.
If the woman requests it, the physician or qualified person assisting the
physician must provide the woman with a list that specifies public and private
agencies and services that are available to provide her with birth control
information. The list is distributed by county departments of social services or
human services of counties in which are located hospitals, clinics or facilities in
which abortions are performed.
Under the bill, the information that is required to be provided to the woman
and, if the woman is a minor and has not obtained a judicial waiver, the individual
who is also giving consent for the abortion for the minor must be provided in an
individual setting that protects privacy, maintains the confidentiality of the decision
and ensures that the information received focuses on the woman's individual
circumstances. The woman and, if the woman is a minor and has not obtained a
judicial waiver, the individual who is also giving consent for the abortion for the
minor receiving the information must be provided the opportunity to ask questions
and receive requested information, after which the woman and, if the woman is a
minor and has not obtained a judicial waiver, the individual must certify in writing
that the required or requested information has been provided, in the required
setting, and that any questions have been answered. The physician or qualified
person assisting the physician must place this certification in the woman's medical
record prior to performance or inducement of the abortion.
The bill requires that the department of health and social services (DHSS)
publish certain printed materials in English, Spanish and certain other languages,
distribute the materials to county departments of social services and human services
and upon request, annually review the materials for accuracy and exercise
reasonable diligence in providing materials that are current. The materials include
a listing of services and agencies available to provide ultra sound imaging services,
to assist if the unborn child is diagnosed to have a disability or if the pregnancy is
the result of sexual assault or incest or assist a woman through pregnancy, upon
childbirth and while the child is dependent; pictures or drawings that are designed
to inform the woman of probable anatomical and physiological characteristics of the
unborn child at certain increments of the pregnancy; information on the availability
of certain governmentally funded programs; and a form to certify that required
information is provided. The bill requires DHSS and the county departments to
distribute the materials, upon request, and authorizes the charging of a fee, not to
exceed the actual costs of preparation and distribution, for them. Under the bill,
physicians who intend to perform or induce an abortion, or other qualified physicians
who believe they may have a patient for whom the materials must be provided, must
request a reasonably adequate number of these materials from DHSS or a county
department. Other persons may request a reasonably adequate number of these
materials. DHSS also is authorized, under the bill, to maintain a 24-hour toll-free
telephone service to provide the listing of available agencies in the locality of the
caller, a description of the services that the agencies offer and the manner in which
they may be contacted.
The bill creates a forfeiture and provides civil remedies for violation of the
informed consent requirements. The bill also creates provisions that include
violations of the informed consent requirements as bases for allegations of
unprofessional conduct for licensed physicians, licensed registered nurses and
certified social workers.
Lastly, the bill expands the types of information required to be reported to
DHSS concerning induced abortions to include, for a minor, whether consent for the
minor's abortion was obtained and, if so, the relationship to the minor of the
individual who provided consent or if not, on what basis the abortion was performed.
Current U.S. supreme court opinion:
In Planned Parenthood v. Casey, 505 U.S. ...., 112 S.Ct. 2791 (1992), 3 justices
of the U.S. supreme court delivered a plurality opinion that specifically overruled the
court's previous holding in City of Akron v. Akron Center for Reproductive Health, 462
U.S. 416, 103 S.Ct. 2481 (1983) and found that a 24-hour waiting period prior to
performance of an abortion does not constitute an undue burden on a woman's
procurement of an abortion. Casey, at 2825, 2826. With respect to the informed
consent requirement of the Pennsylvania law in question, the 3 justices found that
"... requiring that the woman be informed of the availability of information relating
to fetal development and the assistance available should she decide to carry the
pregnancy to full term is a reasonable measure to insure an informed choice ...." Id.,
at 2824. They stated, "In attempting to ensure that a woman apprehend the full
consequences of her decision, the State furthers the legitimate purpose of reducing
the risk that a woman may elect an abortion, only to discover later, with devastating
psychological consequences, that her decision was not fully informed. If the
information the State requires to be made available to the woman is truthful and not
misleading, the requirement may be permissible." Id., at 2823. (The Pennsylvania
law reviewed in Casey required that the physician who is to perform the abortion, the
referring physician or a qualified physician assistant, health care practitioner,
technician or social worker orally inform the pregnant woman about the proposed
procedure, medical risks, the probable gestational age of the unborn child,
alternatives to abortion, medical assistance benefits and the liability of the father for
child support and that the Pennsylvania department publishes and will provide to
her, free of charge, if she chooses to review it, printed materials designed to inform
the woman of the probable anatomical and physiological characteristics of the
unborn child at 2-week gestational increments from fertilization to full term.) The
3 justices noted that the Pennsylvania statute requiring provision of information "...
does not require a physician to comply with the informed consent provisions `if he or
she can demonstrate by a preponderance of the evidence, that he or she reasonably
believed that furnishing the information would have resulted in a severely adverse
effect on the physical or mental health of the patient ...' " and "... does not prevent the
physician from exercising his or her medical judgment." Id., at 2824.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
246.245 Information for certain pregnant women.
A county department 3
under s. 46.215, 46.22 or 46.23 shall do all of the following:
Upon request, distribute the materials described under s. 253.10 (3) (d), as 5
prepared and distributed by the department. The county department may charge 6
a fee not to exceed the actual cost of preparation and distribution of the materials. 7
A physician who intends to perform or induce an abortion or another qualified
physician, as defined in s. 253.10 (2) (g), who reasonably believes that he or she might 2
have a patient for whom the information under s. 253.10 (3) (d) is required to be 3
given, shall request a reasonably adequate number of the materials from the county 4
department under this subsection or from the department under s. 253.10 (3) (d). An 5
individual may request a reasonably adequate number of the materials.
In any county in which a hospital, clinic or other facility in which abortions 7
are performed is located, prepare the list specified under s. 253.10 (3) (cm) and 8
distribute the list to each of those hospitals, clinics or other facilities.
(a) 1. The person or the person's agent has, either directly or through 11
a referring physician or his or her agent, received and made part of the minor's 12
medical record, under the requirements of s. 253.10,
the voluntary and informed 13
written consent of the minor and the voluntary and informed
written consent of one 14
of her parents; or of the minor's guardian or legal custodian, if one has been 15
appointed; or of an adult family member of the minor; or of one of the minor's foster 16
parents or treatment foster parents, if the minor has been placed in a foster home 17
or treatment foster home and the minor's parent has signed a waiver granting the 18
department, a county department, the foster parent or the treatment foster parent 19
the authority to consent to medical services or treatment on behalf of the minor.
(j) If the patient is a minor, whether consent was provided under s. 22
48.375 (4) (a) 1. for the abortion and, if so, the relationship of the individual providing 23
consent to the minor; or, if consent under s. 48.375 (4) (a) 1. was not provided, on 24
which of the bases under s. 48.375 (4) (a) 2. or (b) 1., 1g., 1m., 2. or 3. the abortion was 25
2253.10 Voluntary and informed consent for abortions.
3findings and intent.
(a) The legislature finds that:
1. Many women now seek or are encouraged to undergo elective abortions 5
without full knowledge of the medical and psychological risks of abortion, 6
development of the unborn child or of alternatives to abortion. An abortion decision 7
is often made under stressful circumstances.
2. The knowledgeable exercise of a woman's decision to have an elective 9
abortion depends on the extent to which the woman receives sufficient information 10
to make a voluntary and informed choice between 2 alternatives of great 11
consequence: carrying a child to birth or undergoing an abortion.
3. The U.S. supreme court has stated: "In attempting to ensure that a woman 13
apprehend the full consequences of her decision, the State furthers the legitimate 14
purpose of reducing the risk that a woman may elect an abortion, only to discover 15
later, with devastating psychological consequences, that her decision was not fully 16
informed." Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 U.S. 17
2791, 2823 (1992).
4. It is essential to the psychological and physical well-being of a woman 19
considering an elective abortion that she receive complete and accurate information 20
on all options available to her in dealing with her pregnancy.
5. The vast majority of elective abortions in this state are performed in clinics 22
that are devoted solely to providing abortions and family planning services. Women 23
who seek elective abortions at these facilities normally do not have a prior 24
patient-physician relationship with the physician who is to perform or induce the 25
abortion, normally do not return to the facility for post-operative care and normally
do not continue a patient-physician relationship with the physician who performed 2
or induced the abortion. In most instances, the woman's only actual contact with the 3
physician occurs simultaneously with the abortion procedure, with little opportunity 4
to receive personal counseling by the physician concerning her decision. Because of 5
this, certain safeguards are necessary to protect a woman's right to know.
6. A reasonable waiting period is critical to ensure that a woman has the fullest 7
opportunity to give her voluntary and informed consent before she elects to undergo 8
(b) It is the intent of the legislature in enacting this section to further the 10
important and compelling state interests in all of the following:
1. Protecting the life and health of the woman subject to an elective abortion 12
and, to the extent constitutionally permissible, the life of her unborn child.
2. Fostering the development of standards of professional conduct in the 14
practice of abortion.
3. Ensuring that prior to the performance or inducement of an elective abortion, 16
the woman considering an elective abortion receive personal counseling by the 17
physician and be given a full range of information regarding her pregnancy, her 18
unborn child, the abortion, the medical and psychological risks of abortion and 19
available alternatives to the abortion.
4. Ensuring that a woman who decides to have an elective abortion gives her 21
voluntary and informed consent to the abortion procedure.
In this section:
(a) "Abortion" means the use of an instrument, medicine, drug or other 24
substance or device with intent to terminate the pregnancy of a woman known to be 25
pregnant or for whom there is reason to believe that she may be pregnant and with
intent other than to increase the probability of a live birth, to preserve the life or 2
health of the infant after live birth or to remove a dead fetus.
(b) "Agency" means a private nonprofit organization or a county department 4
under s. 46.215, 46.22 or 46.23.
(c) "Disability" means a physical or mental impairment that substantially 6
limits one or more major life activities, a record of having such an impairment or 7
being regarded as having such an impairment. "Disability" includes any physical 8
disability or developmental disability, as defined in s. 51.01 (5) (a).
(d) "Medical emergency" means a condition, in a physician's reasonable medical 10
judgment, that so complicates the medical condition of a pregnant woman as to 11
necessitate the immediate abortion of her pregnancy to avert her death or for which 12
a 24-hour delay in performance or inducement of an abortion will create serious risk 13
of substantial and irreversible impairment of one or more of the woman's major 14
(e) "Probable gestational age of the unborn child" means the number of weeks 16
that have elapsed from the probable time of fertilization of a woman's ovum, based 17
on the information provided by the woman as to the time of her last menstrual period, 18
her medical history, a physical examination performed by the physician who is to 19
perform or induce the abortion or by any other qualified physician and any 20
appropriate laboratory tests performed on her.
(f) "Qualified person assisting the physician" means a social worker certified 22
under ch. 457, a registered nurse or a physician assistant to whom a physician who 23
is to perform or induce an abortion has delegated the responsibility, as the 24
physician's agent, for providing the information required under sub. (3) (c) 2.
(g) "Qualified physician" means a physician who by training or experience is 2
qualified to provide the information required under sub. (3) (c) 1.
(h) "Viability" has the meaning given in s. 940.15 (1).
4(3) Voluntary and informed consent.
An abortion may not be 5
performed or induced unless the woman upon whom the abortion is to be performed 6
or induced has and, if the woman is a minor and s. 48.375 (4) (a) 2. does not apply, 7
the individual who also gives consent under s. 48.375 (4) (a) 1. have given voluntary 8
and informed written consent under the requirements of this section.
(b) Voluntary consent.
Consent under this section to an abortion is voluntary 10
only if the consent is given freely and without coercion by any person.
(c) Informed consent.
Except if a medical emergency exists, a woman's consent 12
to an abortion is informed only if all of the following first take place:
1. At least 24 hours before the abortion is to be performed or induced, the 14
physician who is to perform or induce the abortion or any other qualified physician 15
has, in person, orally informed the woman of all of the following:
a. Whether or not, according to the reasonable medical judgment of the 17
physician, the woman is pregnant.
b. The probable gestational age of the unborn child at the time that the 19
information is provided. The physician or other qualified physician shall also 20
provide this information to the woman in writing at this time.
c. The particular medical risks, if any, associated with the woman's pregnancy.