LRB-4874/1
DAK:jld:rs
2005 - 2006 LEGISLATURE
May 2, 2006 - Introduced by Senators Miller, Risser and Erpenbach, cosponsored
by Representatives Berceau, Kessler, Richards, Boyle, Shilling, Travis,
Sinicki, Black, Grigsby, Seidel, Turner, Young, Pope-Roberts, Benedict,
Pocan, Sheridan, Parisi and Wasserman. Referred to Committee on Health,
Children, Families, Aging and Long Term Care.
SB721,1,5
1An Act to repeal 940.04; and
to amend 939.75 (2) (b) 1. of the statutes;
relating
2to: eliminating certain laws that prohibit intentional destruction of or
3consenting to the destruction of the life of an unborn child or unborn quick child
4and prohibit causing the death of a mother by acting with intent to destroy the
5life of an unborn child.
Analysis by the Legislative Reference Bureau
Under current law, any person, other than the mother, who intentionally
destroys the life of an unborn child is guilty of a Class H felony, for which the penalty
is a fine not to exceed $10,000 or imprisonment not to exceed six years or both.
"Unborn child" is defined as a human being from the time of conception until born
alive. 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 is guilty of a Class E felony, for which the penalty is a fine
not to exceed $50,000 or imprisonment not to exceed 15 years or both. Any pregnant
woman who intentionally destroys the life of her unborn child or who consents to the
destruction by another may be fined not more than $200 or imprisoned not more than
six months or both, but for the same action with respect to an unborn quick child the
penalty is a fine not to exceed $10,000 or imprisonment not to exceed three years and
six months or both. None of these penalties apply to a therapeutic abortion that is
performed by a physician; is necessary, or advised by two other physicians as
necessary, to save the life of the mother; and, unless an emergency prevents, is
performed in a licensed maternity hospital. These laws were cited, in Roe v. Wade,
410 U. S. 113 (1973), as similar to a Texas statute that was held to violate the due
process clause of the 14th amendment of the United States Constitution, which
protects against state action the right to privacy, including a woman's qualified right
to terminate her pregnancy.
Current law also prohibits intentional performance of an abortion after a fetus
or unborn child reaches viability (defined as that stage of fetal development when,
in the medical judgment of the attending physician based on the particular facts of
the case before him or her, there is a reasonable likelihood of sustained survival of
the fetus outside the womb, with or without artificial support). In State v. Black, 188
Wis. 2d 639 (1994), the provision in current law concerning intentional destruction
of the life of an unborn quick child was held to be not impliedly repealed by the
adoption of the current law that prohibits intentional performance of an abortion
after a fetus or unborn child reaches viability.
Lastly, current law 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. Further, crimes of being a
party to a crime, solicitation, and conspiracy are inapplicable to a woman who
obtains an abortion or otherwise violates an abortion law with respect to her unborn
child or fetus.
This bill eliminates the current laws that prohibit the intentional destruction
of the life of an unborn child or an unborn quick child by a person other than the
mother, that prohibit causing the death of a mother by an act done with intent to
destroy the life of an unborn child, and that prohibit a pregnant woman from
intentionally destroying the life of her unborn child or unborn quick child or
consenting to the destruction by another. The bill does not affect current law that
prohibits intentional performance of an abortion after a fetus or unborn child reaches
viability.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB721, s. 1
1Section
1. 939.75 (2) (b) 1. of the statutes is amended to read:
SB721,2,42
939.75
(2) (b) 1. An act committed during an induced abortion. This
3subdivision does not limit the applicability of ss.
940.04, 940.13, 940.15 and 940.16
4to an induced abortion.
SB721, s. 2
5Section
2. 940.04 of the statutes is repealed.
