1997 - 1998 LEGISLATURE
March 25, 1997 - Introduced by Representatives Goetsch, Wood, Ladwig, Seratti,
Freese, Ryba, Green, Walker, Lorge, Lazich, Otte, Ziegelbauer, Duff,
Huebsch, Hutchison, Staskunas, Handrick, Dobyns, Ainsworth, Owens,
Hoven, Zukowski, Harsdorf, Urban, Nass, F. Lasee, Powers, Ward, Kreibich,
Jeskewitz, Schafer, Ott, Gunderson, Vrakas, Sykora, Gard, Hahn, Kelso,
Brandemuehl, Vander Loop, Porter, Olsen and Plale, cosponsored by
Senators Fitzgerald, Grobschmidt, Zien, Huelsman, Buettner, Darling,
Welch, A. Lasee, Cowles, Farrow, Schultz and Weeden. Referred to
Committee on Criminal Justice and Corrections.
1An Act to amend
939.62 (2m) (a) 2. and 973.0135 (1) (b) 2.; and to create
of the statutes; relating to: prohibiting performance of certain partial-birth
3abortions and providing a penalty.
Analysis by the Legislative Reference Bureau
In Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833
(1992), the U.S. Supreme Court reaffirmed what it called the essential holding of the
landmark abortion case, Roe v. Wade, 410 U.S. 113 (1973). In Casey the court
described the holding in Roe as having 3 parts:
1. A pregnant woman has a right to choose to have an abortion before the fetus
reaches viability (which means that the fetus is potentially able to live outside the
womb) without undue interference from the state. The state may not prohibit
abortions before viability.
2. The state may restrict abortions after the fetus reaches viability if it provides
exceptions for pregnancies in which the woman's life or health is endangered.
3. The state has legitimate interests from the start of the pregnancy in
protecting the health of the woman and the life of the fetus.
Currently, Wisconsin has 2 statutes that might be used to prosecute the
performance of an abortion. The first statute clearly provides criminal penalties for
performing abortions. This statute, which was enacted after Roe v. Wade, provides
a fine of not more than $10,000 or imprisonment for not more than 2 years or both
for the intentional performance of an abortion after a fetus reaches viability or, at any
time, by a person who is not a physician. This statute does not apply to abortions
performed under specified conditions that are necessary to preserve the life or health
of the pregnant woman and may not be enforced against a woman who obtains an
The 2nd statute appears to provide criminal penalties for performing abortions,
though whether the statute applies to abortion is currently unclear. This statute,
which was enacted before Roe v. Wade, provides penalties for destroying the life of
an unborn child. The penalties provided by this statute, the maximum of which is
15 years' imprisonment, vary depending on whether or not the unborn child who dies
has quickened. One provision of this statute has been interpreted to be a feticide
statute, not an abortion statute. State v. Black, 188 Wis. 2d 639 (1994). It is not clear
whether the provisions of the statute that were not considered in the Black case
prohibit abortion or feticide or both. To the extent that this statute covers abortion,
it provides an exception for therapeutic abortions, it may not be enforced against a
woman who obtains an abortion and its enforcement is subject to the holdings of Roe
v. Wade and Casey.
This bill prohibits the performance of "partial-birth" abortions. The bill defines
a partial-birth abortion as an abortion in which a person partially vaginally delivers
a living child, causes the death of the partially delivered child with the intent to kill
the child, and then completes the delivery of the child. The bill does not require that
the child be viable at the time of the partial-birth abortion. A person who is found
guilty of violating this prohibition must be sentenced to life imprisonment. The
prohibition created in the bill does not apply if a partial-birth abortion is necessary
to save the life of a woman whose life is endangered by a physical disorder, physical
illness or physical injury and if no other medical procedure would suffice to save her
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB220, s. 1
939.62 (2m) (a) 2. of the statutes is amended to read:
(a) 2. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09 3
940.19 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 4
943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43, 948.02 (1) or (2), 5
948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) 6
or (c) or 948.36.
AB220, s. 2
940.16 of the statutes is created to read:
8940.16 Partial-birth abortion. (1)
In this section:
(a) "Child" means a human being from the time of fertilization until it is 2
completely delivered from a pregnant woman.
(b) "Partial-birth abortion" means an abortion in which a person partially 4
vaginally delivers a living child, causes the death of the partially delivered child with 5
the intent to kill the child, and then completes the delivery of the child.
Except as provided in sub. (3), whoever intentionally performs a 7
partial-birth abortion is guilty of a Class A felony.
Subsection (2) does not apply if the partial-birth abortion is necessary to 9
save the life of a woman whose life is endangered by a physical disorder, physical 10
illness or physical injury, including a life-endangering physical disorder, physical 11
illness or physical injury caused by or arising from the pregnancy itself, and if no 12
other medical procedure would suffice for that purpose.
AB220, s. 3
973.0135 (1) (b) 2. of the statutes is amended to read:
(b) 2. Any felony under s. 940.01, 940.02, 940.03, 940.05, 940.09 15
940.19 (5), 940.21, 940.225 (1) or (2), 940.305, 940.31, 941.327 (2) (b) 4., 16
943.02, 943.10 (2), 943.23 (1g), (1m) or (1r), 943.32 (2), 946.43, 948.02 (1) or (2), 17
948.025, 948.03 (2) (a) or (c), 948.05, 948.06, 948.07, 948.08, 948.30 (2), 948.35 (1) (b) 18
or (c) or 948.36.