AB656: Bill Text

LRB-3349/1

TJD:ahe

2017 - 2018 LEGISLATURE

2017 Assembly BILL 656

November 17, 2017 - Introduced by Representatives C. Taylor, Anderson, Berceau, Billings, Brostoff, Considine, Crowley, Fields, Goyke, Hebl, Hesselbein, Kolste, Ohnstad, Pope, Riemer, Sargent, Sinicki, Spreitzer, Stuck, Subeck, Wachs, Zamarripa and Zepnick, cosponsored by Senators Erpenbach, Bewley, Johnson, Larson, Miller, Ringhand, Risser, Shilling, L. Taylor, Vinehout and Wirch. Referred to Committee on Health.

AB656,1,6 An Act to repeal 46.245, 69.186 (1) (hf), 69.186 (1) (k), 69.186 (1) (L), 253.095, 253.10, 253.105, 253.107, 441.07 (1g) (f), 457.26 (2) (gm), 632.8985, 940.04 and 940.15 (5); to amend 20.9275 (1) (a), 48.375 (4) (a) 1., 49.45 (49g) (a) 1d., 448.02 (3) (a), 939.75 (2) (b) 1., 968.26 (1b) (a) 2. a., 990.001 (17) (b) and 990.01 (19j) (b); and to create 253.094 of the statutes; relating to: right to choose an abortion and elimination of certain abortion-related regulations.

Analysis by the Legislative Reference Bureau

The bill specifies that every woman has the fundamental right to choose to obtain a safe and legal abortion. Under the bill, the state may not prohibit a woman from obtaining an abortion before viability or from obtaining an abortion at any time during her pregnancy if the termination is necessary, in the professional judgment of a physician, to protect her life or health. Also under the bill, a law or rule of this state that places a burden on a woman's access to abortion is unenforceable if the law or rule does not confer any legitimate health benefit. The bill describes circumstances that constitute a law or rule placing a burden on access to abortion or conferring a legitimate health benefit. Any person that is or may be aggrieved by the enforcement of a law or rule passed or promulgated after the effective date of the bill that would be unenforceable under the bill may bring an action in state or federal court for injunctive relief or damages against a state or local official who enforces or attempts to enforce such a law or rule.

In addition, the bill makes various changes to the laws relating to abortion, including:

1. The bill eliminates requirements for voluntary and informed consent before the performance of an abortion. Current law requires that a woman upon whom an abortion is to be performed or induced must give voluntary and informed written consent to an abortion. Except in a medical emergency, a woman's consent to an abortion is considered informed only if, before the abortion is performed or induced at a time specified in current law, the physician or an assistant has, in person, orally provided the woman with certain information and given to the woman certain written materials.

2. The bill eliminates the requirement that except in a medical emergency a physician must determine or rely on another determination of the probable postfertilization age of an unborn child before performing an abortion. The bill also eliminates the prohibition on performing or inducing an abortion if the probable postfertilization age of the unborn child is 20 or more weeks.

3. This bill eliminates the prohibition on giving a woman an abortion-inducing drug unless the physician who provided the drug for the woman performs a physical exam on the woman and is physically present in the room when the drug is given to the woman.

4. The bill eliminates the prohibition on coverage of abortions by qualified health plans offered through an exchange in this state.

5. The bill eliminates the prohibition on performing abortions by a physician that does not have admitting privileges in a hospital within 30 miles of the location where the abortion is to be performed. Under a federal appellate court ruling, the requirement to have admitting privileges currently may not be enforced.

6. Under current law, any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $10,000, imprisoned for not more than six years, or both. Any person, other than the mother, who intentionally destroys the life of an unborn quick child or causes the mother's death by an act done with intent to destroy the life of an unborn child may be fined not more than $50,000, imprisoned for not more than 15 years, or both. None of these penalties apply to a therapeutic abortion that is performed by a physician; that is necessary, or advised by two other physicians as necessary, to save the life of the mother; and that is performed, except on an emergency basis, in a licensed maternity hospital. These provisions were cited, along with other provisions not affected by this bill that prohibit performing an abortion generally, in Roe v. Wade, 410 U.S. 113 (1973), as substantially similar to a Texas statute that was held to violate the due process clause of the 14th Amendment to the U.S. Constitution. The bill repeals these provisions. The bill also repeals the criminal penalty on a person who is not a physician and who intentionally performs an abortion. The bill, however, does not affect any other criminal prohibition or limitation on abortion in current law, such as the prohibition on performing an abortion after the fetus or unborn child has reached viability, or any other homicide prohibition. The bill also does not affect a separate provision in current law that prohibits prosecution of and imposing or enforcing a fine or imprisonment against a woman who obtains an abortion or otherwise violates any abortion law with respect to her unborn child or fetus.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB656,1 Section 1. 20.9275 (1) (a) of the statutes is amended to read:

AB656,3,3 20.9275 (1) (a) “Abortion" has the meaning given in s. 253.10 (2) (a) for “induced abortion" under s. 69.01 (13m).

AB656,2 Section 2. 46.245 of the statutes is repealed.

AB656,3 Section 3. 48.375 (4) (a) 1. of the statutes is amended to read:

AB656,3,14 48.375 (4) (a) 1. The person or the person's agent has, either directly or through a referring physician or his or her agent, received and made part of the minor's medical record, under the requirements of s. 253.10, the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents; or of the minor's guardian or legal custodian, if one has been appointed; or of an adult family member of the minor; or of one of the minor's foster parents, if the minor has been placed in a foster home and the minor's parent has signed a waiver granting the department, a county department, or the foster parent the authority to consent to medical services or treatment on behalf of the minor.

AB656,4 Section 4. 49.45 (49g) (a) 1d. of the statutes is amended to read:

AB656,3,17 49.45 (49g) (a) 1d. “Abortion" has the meaning given in s. 253.10 (2) (a) for “induced abortion” under s. 69.01 (13m).

AB656,5 Section 5. 69.186 (1) (hf) of the statutes is repealed.

AB656,6 Section 6. 69.186 (1) (k) of the statutes is repealed.

AB656,7 Section 7. 69.186 (1) (L) of the statutes is repealed.

AB656,8 Section 8. 253.094 of the statutes is created to read:

AB656,4,5 253.094 Right to abortion. (1) Every woman has the fundamental right to choose to obtain a safe and legal abortion. The state may not prohibit a woman from obtaining an abortion before viability. The state may not prohibit a woman from obtaining an abortion at any time during her pregnancy if the termination is necessary, in the professional judgment of a physician, to protect her life or health.

AB656,4,8 (2) (a) A law or rule of this state that places a burden on a woman's access to abortion, as described in par. (b), is unenforceable if the law or rule does not confer any legitimate health benefit, as described in par. (c).

AB656,4,10 (b) A law or regulation places a burden on access to abortion if the law or rule does any of the following:

AB656,4,11 1. Forces abortion providers to close.

AB656,4,12 2. Increases the time a woman must wait to have an abortion.

AB656,4,14 3. Requires a meaningful increase in the distance a woman must travel to access abortion-related care.

AB656,4,16 4. Requires medically unnecessary visits to a health care provider before or after obtaining an abortion.

AB656,4,18 5. Requires a health care provider to perform a medical service that the provider would not otherwise perform.

AB656,4,19 6. Increases the risk to a woman's health.

AB656,4,21 7. Causes a meaningful increase in the cost of an abortion or abortion-related procedure.

AB656,4,22 8. Has no purpose other than to stigmatize a patient or an abortion provider.

AB656,4,24 9. Has no purpose or effect other than to decrease or eliminate access to abortion.

AB656,5,2 (c) A law or rule confers a legitimate health benefit if the law or rule does any of the following:

AB656,5,3 1. Expands a woman's access to health care services.

AB656,5,4 2. According to evidence-based research, increases patient safety.

AB656,5,9 (d) Any person that is or may be aggrieved by the enforcement of a law or rule passed or promulgated after the effective date of this paragraph .... [LRB inserts date], that violates this subsection may bring an action in state or federal court for injunctive relief or damages against a state or local official who enforces or attempts to enforce such a law or rule.

AB656,9 Section 9. 253.095 of the statutes is repealed.

AB656,10 Section 10. 253.10 of the statutes is repealed.

AB656,11 Section 11. 253.105 of the statutes is repealed.

AB656,12 Section 12. 253.107 of the statutes is repealed.

AB656,13 Section 13. 441.07 (1g) (f) of the statutes is repealed.

AB656,14 Section 14. 448.02 (3) (a) of the statutes, as affected by 2013 Wisconsin Act 240, is amended to read: