2011 Wisconsin Act 217

253.10 (7) Affirmative defense. No person is liable under sub. (5) or (6) or under s. 441.07 (1) (f), 448.02 (3) (a), or 457.26 (2) (gm) for failure under sub. (3) (c) 2. d. to provide the printed materials described in sub. (3) (d) to a woman or for failure under sub. (3) (c) 2. d., e., f., fm., or g. to describe the contents of the printed materials if the person has made a reasonably diligent effort to obtain the printed materials under sub. (3) (e) and s. 46.245 and the department and the county department under s. 46.215, 46.22, or 46.23 have not made the printed materials available at the time that the person is required to give them to the woman.

217,9 Section 9. 253.10 (7m) of the statutes is created to read:

253.10 (7m) Confidentiality in court proceedings. (a) In every proceeding brought under this section, the court, upon motion or sua sponte, shall rule whether the identity of any woman upon whom an abortion was performed or induced or attempted to be performed or induced shall be kept confidential unless the woman waives confidentiality. If the court determines that a woman's identity should be kept confidential, the court shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the woman's identity from public disclosure. If the court issues an order to keep a woman's identity confidential, the court shall provide written findings explaining why the woman's identity should be kept confidential, why the order is essential to that end, how the order is narrowly tailored to its purpose, and why no reasonable less restrictive alternative exists.

(b) Any person, except for a public official, who brings an action under this section shall do so under a pseudonym unless the person obtains the written consent of the woman upon whom an abortion was performed or induced, or attempted to be performed or induced, in violation of this section.

(c) The section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

217,10 Section 10. 253.105 of the statutes is created to read:

253.105 Prescription and use of abortion-inducing drugs. (1) In this section:

(a) "Abortion" has the meaning given in s. 253.10 (2) (a).

(b) "Abortion-inducing drug" has the meaning given in s. 253.10 (2) (am).

(c) "Physician" has the meaning given in s. 448.01 (5).

(2) No person may give an abortion-inducing drug to a woman unless the physician who prescribed, or otherwise provided, the abortion-inducing drug for the woman:

(a) Performs a physical exam of the woman before the information is provided under s. 253.10 (3) (c) 1.

(b) Is physically present in the room when the drug is given to the woman.

(3) Penalty. Any person who violates sub. (2) is guilty of a Class I felony. No penalty may be assessed against a woman to whom an abortion-inducing drug is given.

(4) Civil remedies. (a) Any of the following persons has a claim against a person who intentionally or recklessly violates sub. (2):

1. A woman to whom an abortion-inducing drug was given in violation of sub. (2).

2. If the abortion-inducing drug was given to a minor in violation of sub. (2), a parent or guardian of the minor.

3. The father of the unborn child aborted as the result of an abortion-inducing drug given in violation of sub. (2), unless the pregnancy of the person to whom the abortion-inducing drug was given was the result of sexual assault in violation of s. 940.225, 944.06, 948.02, 948.025, 948.06, 948.085, or 948.09 and the violation was committed by the father.

(b) A claim for relief under par. (a) may include:

1. Damages arising out of the inducement of the abortion, including damages for personal injury and emotional and psychological distress.

2. Punitive damages for a violation that satisfies the standard under s. 895.043 (3).

(c) Notwithstanding s. 814.04 (1), a person who recovers damages under this subsection may also recover reasonable attorney fees incurred in connection with the action.

(d) A conviction under sub. (3) is not a condition precedent to bringing an action, obtaining a judgment, or collecting a judgment under this subsection.

(e) A contract is not a defense to an action under this subsection.

(f) Nothing in this section limits the common law rights of a person that are not in conflict with sub. (2).

(5) Confidentiality in court proceedings. (a) In every proceeding brought under this section, the court, upon motion or sua sponte, shall rule whether the identity of any woman upon whom an abortion was induced or attempted to be induced shall be kept confidential unless the woman waives confidentiality. If the court determines that a woman's identity should be kept confidential, the court shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the woman's identity from public disclosure. If the court issues an order to keep a woman's identity confidential, the court shall provide written findings explaining why the woman's identity should be kept confidential, why the order is essential to that end, how the order is narrowly tailored to its purpose, and why no reasonable less restrictive alternative exists.

(b) Any person, except for a public official, who brings an action under this section shall do so under a pseudonym unless the person obtains the written consent of the woman upon whom an abortion was induced, or attempted to be induced, in violation of this section.

(c) The section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

(6) Construction. Nothing in this section may be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.

217,11 Section 11. 940.04 (3) and (4) of the statutes are repealed.

217,12 Section 12. Effective dates. This act takes effect on the day after publication, except as follows:

(1) Voluntary and informed consent. The treatment of sections 253.10 (3) (b), (c) 1. jm. and 2. fm., (d) 1., and (7) of the statutes takes effect on the first day of the 3rd month beginning after publication.