2015 - 2016 LEGISLATURE
July 6, 2015 - Printed by direction of Assembly Chief Clerk.
1An Act to amend
253.10 (3) (c) 1. b. and 253.10 (3) (d) 1.; and to create
(1) (hf), 69.186 (1) (k) and (L), 253.10 (2) (dr), 253.10 (3) (c) 2. em. and 253.107 3
of the statutes; relating to: requiring a determination of probable
4postfertilization age of an unborn child before abortion, prohibiting abortion of
5an unborn child considered capable of experiencing pain, informed consent,
6abortion reporting, and providing a criminal penalty.
Analysis by the Legislative Reference Bureau
The text of Engrossed 2015 Senate Bill 179, as passed by the senate on June 9,
2015, consists of the following documents adopted in the senate on June 9, 2015: the
bill as affected by Senate Amendment 1. The text also includes the May 26, 2015,
chief clerk's corrections to the senate bill.
Content of Engrossed 2015 Senate Bill 179
This bill prohibits the performance of an abortion, except in a medical
emergency, unless the physician performing or inducing the abortion has made a
determination of the probable postfertilization age of the unborn child or has relied
upon another physician's determination of postfertilization age. The bill prohibits
any person from performing or inducing, or attempting to perform or induce, an
abortion when the unborn child is considered to be capable of experiencing pain,
unless the woman is undergoing a medical emergency. Under the bill, the unborn
child is capable of experiencing pain if the probable postfertilization age of the
unborn child is 20 or more weeks. When the unborn child is considered capable of
experiencing pain and the pregnant woman is undergoing a medical emergency, the
bill requires the physician to terminate the pregnancy in the manner that, in
reasonable medical judgment, provides the best opportunity for the unborn child to
survive, unless termination of the pregnancy in that manner poses a greater risk
either of the death of the pregnant woman or of the substantial and irreversible
physical impairment of a major bodily function of the woman than other available
methods. The bill allows the woman on whom the abortion was performed or
attempted, and the father of the unborn child, unless the pregnancy is the result of
sexual assault or incest, to bring a claim for damages against a person who violates
these limitations and requirements. A prosecuting attorney may also bring an action
for injunctive relief for intentional or reckless violations of the limitations and
requirements. Any person who violates the prohibition against performing,
inducing, or attempting to perform or induce an abortion when the unborn child is
capable of experiencing pain is guilty of a felony subject to a fine not to exceed
$10,000, imprisonment not to exceed three years and six months, or both.
Under current law, annually, each hospital, clinic, or other facility in which an
induced abortion is performed must file with DHS a report for each induced abortion
performed in the calendar year. The report must contain for each patient the state,
and county if Wisconsin, of residence; patient number; race; age; marital status;
month and year in which the abortion was performed; education; number of weeks
since patient's last menstrual period; whether the abortion was chemically or
surgically induced or surgically induced following a failed chemical abortion; and
any resulting complications. If the patient is a minor, the report must contain
whether consent for the abortion was provided and by whom; and, if consent was not
provided, on which basis the abortion was performed. Under current law, DHS is
required to collect the reported information in a manner that ensures anonymity of
the patient who obtained the abortion, the health care provider who performed the
abortion, and the facility in which the abortion was performed. Under current law,
DHS is required to publish annual demographic summaries of the reported
information except what reveals the identity of a patient, provider, or facility.
The bill requires the hospital, clinic, or other facility to report the probable
postfertilization age of the unborn child and whether ultrasound was used to assist
in that determination of postfertilization age; or, if the probable postfertilization age
of the unborn child was not determined, the nature of the medical emergency. If the
unborn child is considered capable of experiencing pain, the bill requires reporting
of the nature of the pregnant woman's medical emergency and a statement of
whether the method of abortion used was one that provided the best opportunity for
the unborn child's survival.
Under current law, 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, at least 24 hours before the abortion is performed or induced, the physician
or an assistant has, in person, orally provided the woman with certain information
and given to the woman certain written materials. If the pregnancy is the result of
sexual assault or incest, the 24-hour period, but not the provision of information,
may be waived or reduced under certain circumstances. In addition to the current
requirement to inform the woman, orally and in writing, of the probable gestational
age, the bill requires that the woman be informed, orally and in writing, of the
probable postfertilization age of the unborn child and the numerical odds of survival
for an unborn child delivered at that probable postfertilization age. The bill also
requires that the woman be orally informed of and provided written materials on the
availability of perinatal hospice.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
(hf) The probable postfertilization age of the unborn child, as defined 3
in s. 253.107 (1) (c), and whether an ultrasound was used to assist in making the 4
determination of postfertilization age of the unborn child, or, if the probable 5
postfertilization age of the unborn child was not determined, the nature of the 6
medical emergency, as defined in s. 253.10 (2) (d).
69.186 (1) (k) and (L) of the statutes are created to read:
(k) If the unborn child is considered to be capable of experiencing 9
pain under s. 253.107 (3) (a), the nature of the medical emergency, as defined in s. 10
253.10 (2) (d), that the pregnant woman had.
(L) If the unborn child is considered to be capable of experiencing pain under 12
s. 253.107 (3) (a), a statement whether the method of abortion used was one that, in 13
reasonable medical judgment, provided the best opportunity for the unborn child to 14
survive or, if such a method was not used, the basis of the determination that 15
termination of the pregnancy in that manner posed a greater risk either of the death 16
of the pregnant woman or of the substantial and irreversible physical impairment 17
of a major bodily function of the woman than other available methods.
(dr) "Perinatal hospice" means comprehensive support that includes 3
support from the time of a terminal diagnosis of an unborn child through the birth 4
and death of the child and through the postpartum period and may include the 5
supportive care of maternal-fetal medical specialists, obstetricians, neonatologists, 6
anesthesia specialists, specialty nurses, psychiatrists, psychologists, mental health 7
professionals, clergy, social workers, and other professionals.
253.10 (3) (c) 1. b. of the statutes is amended to read:
(c) 1. b. The probable gestational age of the unborn child, the
10probable postfertilization age of the unborn child, as defined in s. 253.107 (1) (c), and
11the numerical odds of survival for an unborn child delivered at that probable
at the time that the information is provided. The physician or 13
other qualified physician shall also provide this information to the woman in writing 14
at this time.
253.10 (3) (c) 2. em. of the statutes is created to read:
(c) 2. em. That the printed materials described in par. (d) contain 17
information on the availability of perinatal hospice.
(d) 1. Geographically indexed materials that are designed to inform 20
a woman about public and private agencies, including adoption agencies, and 21
services that are available to provide information on family planning, as defined in 22
s. 253.07 (1) (a), including natural family planning information, to provide 23
ultrasound imaging services, to assist her if she has received a diagnosis that her 24
unborn child has a disability or if her pregnancy is the result of sexual assault or 25
incest and to assist her through pregnancy, upon childbirth and while the child is
dependent. The materials shall include a comprehensive list of the agencies 2
available, a description of the services that they offer and a description of the manner 3
in which they may be contacted, including telephone numbers and addresses, or, at 4
the option of the department, the materials shall include a toll-free, 24-hour 5
telephone number that may be called to obtain an oral listing of available agencies 6
and services in the locality of the caller and a description of the services that the 7
agencies offer and the manner in which they may be contacted. The materials shall 8
provide information on the availability of governmentally funded programs that 9
serve pregnant women and children. Services identified for the woman shall include 10
medical assistance for pregnant women and children under s. 49.47 (4) (am) and 11
49.471, the availability of family or medical leave under s. 103.10, the Wisconsin 12
works program under ss. 49.141 to 49.161, child care services, child support laws and 13
programs and the credit for expenses for household and dependent care and services 14
necessary for gainful employment under section 21
of the Internal Revenue Code. 15
The materials shall state that it is unlawful to perform an abortion for which consent 16
has been coerced, that any physician who performs or induces an abortion without 17
obtaining the woman's voluntary and informed consent is liable to her for damages 18
in a civil action and is subject to a civil penalty, that the father of a child is liable for 19
assistance in the support of the child, even in instances in which the father has 20
offered to pay for an abortion, and that adoptive parents may pay the costs of 21
prenatal care, childbirth and neonatal care. The materials shall include 22
information, for a woman whose pregnancy is the result of sexual assault or incest, 23
on legal protections available to the woman and her child if she wishes to oppose 24
establishment of paternity or to terminate the father's parental rights. The 25
materials shall include information on services in the state that are available for
victims or individuals at risk of domestic abuse. The materials shall include
2information on the availability of perinatal hospice.
4253.107 Probable postfertilization age; later-term abortions. (1) 5Definitions.
In this section:
(a) "Abortion" has the meaning given in s. 253.10 (2) (a).
(b) "Medical emergency" has the meaning given in s. 253.10 (2) (d).
(c) "Probable postfertilization age of the unborn child" means the number of 9
weeks that have elapsed from the probable time of fertilization of a woman's ovum.
10(2) Probable postfertilization age.
Except in the case of a medical emergency, 11
no physician may perform or induce an abortion, or attempt to perform or induce an 12
abortion, unless the physician performing or inducing it has first made a 13
determination of the probable postfertilization age of the unborn child or relied upon 14
such a determination made by another physician.
15(3) Protection of unborn child capable of feeling pain from abortions.
No person shall perform or induce or attempt to perform or induce an abortion upon 17
a woman when the unborn child is considered capable of experiencing pain unless 18
the woman is undergoing a medical emergency. For purposes of this subsection, an 19
unborn child is considered to be capable of experiencing pain if the probable 20
postfertilization age of the unborn child is 20 or more weeks.
(b) When the unborn child is considered capable of experiencing pain and the 22
pregnant woman is undergoing a medical emergency, the physician shall terminate 23
the pregnancy in the manner that, in reasonable medical judgment, provides the best 24
opportunity for the unborn child to survive, unless the termination of the pregnancy 25
in that manner poses a greater risk either of the death of the pregnant woman or of
the substantial and irreversible physical impairment of a major bodily function of the 2
woman than other available methods.
Any person who violates sub. (3) (a) is guilty of a Class I felony. 4
No penalty may be assessed against a woman upon whom an abortion is performed 5
or induced or attempted to be performed or induced.
6(5) Civil remedies; injunctions.
(a) Any of the following individuals may bring 7
a claim for damages, including damages for personal injury and emotional and 8
psychological distress, against a person who performs, or attempts to perform, an 9
abortion in violation of this section:
1. A woman on whom an abortion is performed or induced or attempted to be 11
performed or induced.
2. The father of the aborted unborn child or the unborn child that is attempted 13
to be aborted, unless the pregnancy is the result of sexual assault under s. 940.225 14
(1), (2), or (3) or incest under s. 948.06 (1) or (1m).
(b) A person who has been awarded damages under par. (a) shall, in addition 16
to any damages awarded under par. (a), be entitled to punitive damages for a 17
violation that satisfies a standard under s. 895.043 (3).
(c) 1. Notwithstanding s. 814.04 (1), a person who recovers damages under par. 19
(a) or (b) may also recover reasonable attorney fees incurred in connection with the 20
2. If a defendant prevails in an action under par. (a) and the court finds the 22
action was frivolous or brought in bad faith, notwithstanding s. 814.04 (1), the 23
defendant may recover reasonable attorney fees incurred in connection with 24
defending the action.
(d) A contract is not a defense to an action under this subsection.
(e) Nothing in this subsection limits the common law rights of a person that are 2
not in conflict with sub. (2) or (3).
(f) A prosecuting attorney with appropriate jurisdiction may bring an action for 4
injunctive relief against a person who has intentionally or recklessly violated this 5
6(6) Confidentiality in court proceedings.
(a) In every proceeding brought 7
under this section, the court, upon motion or sua sponte, shall rule whether the 8
identity of any woman upon whom an abortion was performed or induced or 9
attempted to be performed or induced shall be kept confidential unless the woman 10
waives confidentiality. If the court determines that a woman's identity should be 11
kept confidential, the court shall issue orders to the parties, witnesses, and counsel 12
and shall direct the sealing of the record and exclusion of individuals from 13
courtrooms or hearing rooms to the extent necessary to safeguard the woman's 14
identity from public disclosure. If the court issues an order to keep a woman's 15
identity confidential, the court shall provide written findings explaining why the 16
woman's identity should be kept confidential, why the order is essential to that end, 17
how the order is narrowly tailored to its purpose, and why no reasonable less 18
restrictive alternative exists.
(b) Any person, except for a public official, who brings an action under this 20
section shall do so under a pseudonym unless the person obtains the written consent 21
of the woman upon whom an abortion was performed or induced, or attempted to be 22
performed or induced, in violation of this section.
(c) This section may not be construed to allow the identity of a plaintiff or a 24
witness to be concealed from the defendant.
Nothing in this section may be construed as creating or 2
recognizing a right to abortion or as making lawful an abortion that is otherwise 3
(1) Legislative findings.
The legislature finds that the best current evidence 6
(a) Pain receptors (unborn child's entire body nociceptors) are present no later 8
than 16 weeks after fertilization and nerves link these receptors to the brain's 9
thalamus and subcortical plate by no later than 20 weeks.
(b) By 8 weeks after fertilization, the unborn child reacts to stimuli that would 11
be recognized as painful if applied to an adult human, for example, by recoiling.
(c) In the unborn child, application of painful stimuli is associated with 13
significant increases in stress hormones known as the stress response.
(d) Subjection to painful stimuli is associated with long-term harmful 15
neuro-developmental effects, such as altered pain sensitivity and, possibly, 16
emotional, behavioral, and learning disabilities later in life.
(e) For the purposes of surgery on unborn children, fetal anesthesia is routinely 18
administered and is associated with a decrease in stress hormones compared to their 19
level when painful stimuli is applied without the anesthesia.
(f) The position, asserted by some medical experts, that the unborn child is 21
incapable of experiencing pain until a point later in pregnancy than 20 weeks after 22
fertilization predominately rests on the assumption that the ability to experience 23
pain depends on the cerebral cortex and requires nerve connections between the 24
thalamus and the cortex. However, recent medical research and analysis, especially
since 2007, provides strong evidence for the conclusion that a functioning cortex is 2
not necessary to experience pain.
(g) Substantial evidence indicates that children born missing the bulk of the 4
cerebral cortex, those with hydraencephaly, nevertheless experience pain.
(h) In adults, stimulation or ablation of the cerebral cortex does not alter pain 6
perception while stimulation or ablation of the thalamus does.
(i) Substantial evidence indicates that structures used for pain processing in 8
early development differ from those of adults, using different neural elements 9
available at specific times during development, such as the subcortical plate, to fulfill 10
the role of pain processing.
(j) Consequently, there is substantial medical evidence that an unborn child is 12
capable of experiencing pain by 20 weeks after fertilization. The legislature has the 13
constitutional authority to make this judgment. As the U.S. supreme court has noted 14
in Gonzales v. Carhart, 550 U.S. 124, 164-64 (2007): "The Court has given state and 15
federal legislatures wide discretion to pass legislation in areas where there is 16
medical and scientific uncertainty...See Marshall v. United States, 414 U.S. 417, 427 17
(1974) (`When Congress undertakes to act in areas fraught with medical and 18
scientific uncertainties, legislative options must be especially broad.') The law need 19
not give abortion doctors unfettered choice in the course of their medical practice, nor 20
should it elevate their status above other physicians in the medical community. 21
...Medical uncertainty does not foreclose the exercise of legislative power in the 22
abortion context any more than it does in other contexts."
(k) It is the purpose of the state to assert a compelling state interest in 24
protecting the lives of unborn children from the stage at which substantial medical 25
evidence indicates that they are capable of feeling pain. In enacting this legislation,
Wisconsin is not asking the Supreme Court to overturn or replace its holding, first 2
articulated in Roe v. Wade and reaffirmed in Planned Parenthood of Southeastern 3
Pennsylvania v. Casey, that the state interest in unborn human life, which is 4
"legitimate" throughout pregnancy, becomes "compelling" at viability. Rather, it 5
asserts a separate and independent compelling state interest in unborn human life 6
that exists once the unborn child is capable of feeling pain. It is asserted not in 7
replacement of, but in addition, to, the state interest in the viable unborn child.
(l) The U.S. supreme court has established that the "constitutional liberty of 9
the woman to have some freedom to terminate her pregnancy...is not so 10
unlimited...that from the outset the State cannot show its concern for the life of the 11
unborn, and at a later point in fetal development the State's interest in life has 12
sufficient force so that the right of the woman to terminate the pregnancy can be 13
restricted." Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 14
833, 869 (1992).
(m) The Supreme Court decision upholding the Partial-Birth Abortion Ban 16
Act, Gonzales v. Carhart, 550 U.S. 124 (2007) vindicated the dissenting opinion in 17
the earlier decision that had struck down Nebraska's Partial-Birth Abortion Ban 18
Act. That opinion stated, "[In Casey] We held it was inappropriate for the Judicial 19
Branch to provide an exhaustive list of state interests implicated by 20
abortion....Casey is premised on the States having an important constitutional role 21
in defining their interests in the abortion debate. It is only with this principle in 22
mind that [a state's] interests can be given proper weight. ... States also have an 23
interest in forbidding medical procedures which, in the State's reasonable 24
determination, might cause the medical profession or society as a whole to become 25
insensitive, even disdainful, to life, including life in the human fetus.... A State may
take measures to ensure the medical profession and its members are viewed as 2
healers, sustained by a compassionate and rigorous ethic and cognizant of the 3
dignity and value of human life, even life which cannot survive without the 4
assistance of others." Stenberg v. Carhart, 530 U.S. 914, 958-59 (2000) (Kennedy, 5
This act takes effect on the first day of the 7th month beginning after 8