2007 - 2008 LEGISLATURE
January 17, 2008 - Introduced by Senators Miller, Risser and Erpenbach,
cosponsored by Representatives
Berceau, Kreuser, Sinicki, Kessler, Black,
Pocan, Pope-Roberts, Seidel, Boyle, Zepnick, Young, Richards, Toles,
Sheridan, Parisi, Grigsby, Benedict, Shilling and Turner. Referred to
Committee on Health, Human Services, Insurance, and Job Creation.
1An Act to repeal
940.04; and to amend
939.75 (2) (b) 1. of the statutes; relating
2to: eliminating certain abortion prohibitions.
Analysis by the Legislative Reference Bureau
Currently, there are two laws in this state, ss. 940.04 and 940.15, stats., that
directly penalize the performance of certain abortions. These laws are, in turn,
affected by a third law, s. 940.13, stats.
Under this 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. "Unborn quick child" is not
defined. 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 her 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 a
emergency prevents, is performed in a licensed maternity hospital. This statute was
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 the right to privacy, including a woman's qualified right
to terminate her pregnancy. Because of the Roe v. Wade decision, a subsequent
decision by a federal district court, Larkin v. McCann, 368 F. Supp. 1352 (E.D. Wis.,
1974), held the statute unenforceable.
This law prohibits intentional performance of an abortion after a fetus or
unborn child reaches viability, unless the abortion is necessary to preserve the life
or health of the woman. "Viability" is 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. Intentional
performance of such an abortion is a Class I felony, for which the penalty is a fine not
to exceed $10,000 or imprisonment not to exceed three years and six months or both.
This penalty does not apply to a woman who obtains an abortion in violation of the
This 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.
Effect of this bill
This bill eliminates s. 940.04, stats.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB398, s. 1
939.75 (2) (b) 1. of the statutes is amended to read:
(b) 1. An act committed during an induced abortion. This 3
subdivision does not limit the applicability of ss. 940.04,
940.13, 940.15 and 940.16 4
to an induced abortion.
SB398, s. 2
940.04 of the statutes is repealed.