2017 - 2018 LEGISLATURE
November 17, 2017 - Introduced by Representatives C. Taylor, Anderson,
Berceau, Billings, Brostoff, Considine, Crowley, Fields, Goyke, Hebl,
Hesselbein, Kolste, Ohnstad, Pope, Riemer, Sargent, Sinicki, Spreitzer,
Stuck, Subeck, Wachs, Zamarripa and Zepnick, cosponsored by Senators
Erpenbach, Bewley, Johnson, Larson, Miller, Ringhand, Risser, Shilling,
L. Taylor, Vinehout and Wirch. Referred to Committee on Health.
1An Act to repeal
46.245, 69.186 (1) (hf), 69.186 (1) (k), 69.186 (1) (L), 253.095, 2
253.10, 253.105, 253.107, 441.07 (1g) (f), 457.26 (2) (gm), 632.8985, 940.04 and 3
940.15 (5); to amend
20.9275 (1) (a), 48.375 (4) (a) 1., 49.45 (49g) (a) 1d., 448.02 4
(3) (a), 939.75 (2) (b) 1., 968.26 (1b) (a) 2. a., 990.001 (17) (b) and 990.01 (19j) (b); 5
and to create
253.094 of the statutes; relating to: right to choose an abortion
6and elimination of certain abortion-related regulations.
Analysis by the Legislative Reference Bureau
The bill specifies that every woman has the fundamental right to choose to
obtain a safe and legal abortion. Under the bill, the state may not prohibit a woman
from obtaining an abortion before viability or from obtaining an abortion at any time
during her pregnancy if the termination is necessary, in the professional judgment
of a physician, to protect her life or health. Also under the bill, a law or rule of this
state that places a burden on a woman's access to abortion is unenforceable if the law
or rule does not confer any legitimate health benefit. The bill describes
circumstances that constitute a law or rule placing a burden on access to abortion or
conferring a legitimate health benefit. Any person that is or may be aggrieved by the
enforcement of a law or rule passed or promulgated after the effective date of the bill
that would be unenforceable under the bill may bring an action in state or federal
court for injunctive relief or damages against a state or local official who enforces or
attempts to enforce such a law or rule.
In addition, the bill makes various changes to the laws relating to abortion,
1. The bill eliminates requirements for voluntary and informed consent before
the performance of an abortion. Current law requires that 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, before the abortion is performed or induced
at a time specified in current law, the physician or an assistant has, in person, orally
provided the woman with certain information and given to the woman certain
2. The bill eliminates the requirement that except in a medical emergency a
physician must determine or rely on another determination of the probable
postfertilization age of an unborn child before performing an abortion. The bill also
eliminates the prohibition on performing or inducing an abortion if the probable
postfertilization age of the unborn child is 20 or more weeks.
3. This bill eliminates the prohibition on giving a woman an abortion-inducing
drug unless the physician who provided the drug for the woman performs a physical
exam on the woman and is physically present in the room when the drug is given to
4. The bill eliminates the prohibition on coverage of abortions by qualified
health plans offered through an exchange in this state.
5. The bill eliminates the prohibition on performing abortions by a physician
that does not have admitting privileges in a hospital within 30 miles of the location
where the abortion is to be performed. Under a federal appellate court ruling, the
requirement to have admitting privileges currently may not be enforced.
6. Under current law, any person, other than the mother, who intentionally
destroys the life of an unborn child may be fined not more than $10,000, imprisoned
for not more than six years, or both. 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 may be fined not more
than $50,000, imprisoned for not more than 15 years, or both. None of these penalties
apply to a therapeutic abortion that is performed by a physician; that is necessary,
or advised by two other physicians as necessary, to save the life of the mother; and
that is performed, except on an emergency basis, in a licensed maternity hospital.
These provisions were cited, along with other provisions not affected by this bill that
prohibit performing an abortion generally, in Roe v. Wade, 410 U.S. 113 (1973), as
substantially similar to a Texas statute that was held to violate the due process
clause of the 14th Amendment to the U.S. Constitution. The bill repeals these
provisions. The bill also repeals the criminal penalty on a person who is not a
physician and who intentionally performs an abortion. The bill, however, does not
affect any other criminal prohibition or limitation on abortion in current law, such
as the prohibition on performing an abortion after the fetus or unborn child has
reached viability, or any other homicide prohibition. The bill also does not affect a
separate provision in current law that 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.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
20.9275 (1) (a) of the statutes is amended to read:
(a) “Abortion" has the meaning given in s. 253.10 (2) (a) for “induced
3abortion" under s. 69.01 (13m)
46.245 of the statutes is repealed.
48.375 (4) (a) 1. of the statutes is amended to read:
(a) 1. The person or the person's agent has, either directly or through 7
a referring physician or his or her agent, received and made part of the minor's 8
medical record, under the requirements of s. 253.10,
the voluntary and informed 9
written consent of the minor and the voluntary and informed written consent of one 10
of her parents; or of the minor's guardian or legal custodian, if one has been 11
appointed; or of an adult family member of the minor; or of one of the minor's foster 12
parents, if the minor has been placed in a foster home and the minor's parent has 13
signed a waiver granting the department, a county department, or the foster parent 14
the authority to consent to medical services or treatment on behalf of the minor.
49.45 (49g) (a) 1d. of the statutes is amended to read:
(a) 1d. “Abortion" has the meaning given in s. 253.10 (2) (a) for
17“induced abortion” under s. 69.01 (13m)
69.186 (1) (hf) of the statutes is repealed.
69.186 (1) (k) of the statutes is repealed.
69.186 (1) (L) of the statutes is repealed.
253.094 of the statutes is created to read:
1253.094 Right to abortion.
Every woman has the fundamental right to 2
choose to obtain a safe and legal abortion. The state may not prohibit a woman from 3
obtaining an abortion before viability. The state may not prohibit a woman from 4
obtaining an abortion at any time during her pregnancy if the termination is 5
necessary, in the professional judgment of a physician, to protect her life or health.
(a) A law or rule of this state that places a burden on a woman's access to 7
abortion, as described in par. (b), is unenforceable if the law or rule does not confer 8
any legitimate health benefit, as described in par. (c).
(b) A law or regulation places a burden on access to abortion if the law or rule 10
does any of the following:
1. Forces abortion providers to close.
2. Increases the time a woman must wait to have an abortion.
3. Requires a meaningful increase in the distance a woman must travel to 14
access abortion-related care.
4. Requires medically unnecessary visits to a health care provider before or 16
after obtaining an abortion.
5. Requires a health care provider to perform a medical service that the 18
provider would not otherwise perform.
6. Increases the risk to a woman's health.
7. Causes a meaningful increase in the cost of an abortion or abortion-related 21
8. Has no purpose other than to stigmatize a patient or an abortion provider.
9. Has no purpose or effect other than to decrease or eliminate access to 24
(c) A law or rule confers a legitimate health benefit if the law or rule does any 2
of the following:
1. Expands a woman's access to health care services.
2. According to evidence-based research, increases patient safety.
(d) Any person that is or may be aggrieved by the enforcement of a law or rule 6
passed or promulgated after the effective date of this paragraph .... [LRB inserts 7
date], that violates this subsection may bring an action in state or federal court for 8
injunctive relief or damages against a state or local official who enforces or attempts 9
to enforce such a law or rule.
253.095 of the statutes is repealed.
253.10 of the statutes is repealed.
253.105 of the statutes is repealed.
253.107 of the statutes is repealed.
441.07 (1g) (f) of the statutes is repealed.