2021 - 2022 LEGISLATURE
October 4, 2021 - Introduced by Senators Testin,
Bradley, Felzkowski, Bernier,
Darling, Jagler, Kapenga, LeMahieu, Marklein, Nass, Roth and Stroebel,
cosponsored by Representatives
Dittrich, Allen, Callahan, Gundrum,
Horlacher, Katsma, Knodl, Kuglitsch, Loudenbeck, Magnafici,
Penterman, J. Rodriguez, Schraa, Spiros, Summerfield, Thiesfeldt, Tittl,
Tusler and Edming. Referred to Committee on Health.
1An Act to amend
448.02 (3) (a); and
253.10 (3) (c) 2. es. and 253.103 2
of the statutes; relating to: sex-selective, disability-selective, and other
3selective abortions and providing a penalty.
Analysis by the Legislative Reference Bureau
This bill prohibits a person from performing or inducing or attempting to
perform or induce an abortion on a woman if the person knows the woman is seeking
an abortion solely because of the race, color, national origin, ancestry, or sex of the
unborn child or solely because the unborn child has been diagnosed with or has a
potential diagnosis of Down syndrome or another congenital disability. A congenital
disability is defined in the bill as any congenital disease, defect, or disorder, except
a life-limiting fetal anomaly, which is a profound and irremediable congenital or
chromosomal anomaly that is incompatible with sustaining life after birth and does
not include any condition that can be treated. The bill allows a claim for damages
for a violation of this bill to be brought by a woman on whom an abortion is performed,
induced, or attempted; the father of the aborted unborn child or unborn child that
is attempted to be aborted, unless the pregnancy is the result of a sexual assault or
incest; and, if the woman is a minor at the time or dies as a result of the abortion or
attempted abortion, a parent or guardian of the woman on whom an abortion was
performed, induced, or attempted. A district attorney or the attorney general may
bring an action to enjoin a person who performs, induces, or attempts an abortion in
violation of the prohibitions in the bill, and the bill specifies penalties for each
violation of an injunction. An allegation that a physician violates the prohibitions
in the bill is an allegation of unprofessional conduct that must be investigated by the
Medical Examining Board.
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 certain information
specified under current law, the bill requires the physician or assistant to inform the
woman that Wisconsin does not allow an abortion of an unborn child solely because
of the unborn child's race, color, national origin, ancestry, sex, or diagnosis or
potential diagnosis of Down syndrome or another congenital disability.
Current law prohibits any person from performing or inducing an abortion if
the probable postfertilization age of the unborn child is 20 or more weeks, unless the
woman is undergoing a medical emergency. Current law also prohibits a person from
performing an abortion after the unborn child reaches viability, unless the abortion
is necessary to preserve the life or health of the woman.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
253.10 (3) (c) 2. es. of the statutes is created to read:
(c) 2. es. That this state does not allow an abortion of an unborn child 3
solely because of the unborn child's race, color, national origin, ancestry, sex, or 4
diagnosis or potential diagnosis of Down syndrome or another congenital disability.
253.103 of the statutes is created to read:
6253.103 Selective abortions. (1) Definitions.
In this section:
(a) “Abortion” has the meaning given in s. 253.10 (2) (a).
(b) “Congenital disability” means any congenital disease, defect, or disorder, 9
except a life-limiting fetal anomaly, including, but not limited to, any of the 10
1. A physical disability.
2. A mental or intellectual disability.
3. A physical disfigurement.
7. Meromelia, amelia, or other birth defect marked by the absence or partial 7
absence of limbs.
8. A physical or mental disease.
(c) “Down syndrome” means a chromosomal disorder associated with an extra 10
chromosome 21 or an effective trisomy for chromosome 21.
(d) “Life-limiting fetal anomaly” means a profound and irremediable 12
congenital or chromosomal anomaly that is incompatible with sustaining life after 13
birth. “Life-limiting fetal anomaly” does not include any condition that can be 14
15(2) Disability-selective abortion prohibited.
No person may perform or 16
induce or attempt to perform or induce an abortion upon a woman if the person knows 17
that the woman is seeking the abortion solely because the unborn child has been 18
diagnosed with or has a potential diagnosis of Down syndrome or another congenital 19
20(3) Selective abortion prohibited.
No person may perform or induce or 21
attempt to perform or induce an abortion upon a woman if the person knows the 22
woman is seeking an abortion solely because of any of the following characteristics 23
of the unborn child:
(c) National origin.
4(4) Woman exempt from penalty.
No penalty may be assessed against a woman 5
upon whom an abortion is performed or induced or attempted to be performed or 6
induced in violation of sub. (2) or (3).
7(5) Civil remedies; injunction.
(a) Any of the following individuals may bring 8
a claim for damages, including damages for personal injury and emotional and 9
psychological distress, for a violation of sub. (2) or (3):
1. A woman on whom an abortion was performed or induced or attempted to 11
be 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 or incest.
3. If the woman on whom an abortion was performed or induced or attempted 15
to be performed or induced is a minor at the time of the abortion or attempt or dies 16
as a result of the abortion or attempt, a parent or guardian of the woman on whom 17
an abortion was performed or induced or attempted to be performed or induced.
(b) A person who has been awarded damages under par. (a) shall, in addition 19
to any damages awarded under par. (a), be entitled to punitive damages for a 20
violation that satisfies a standard under s. 895.043 (3).
(c) Notwithstanding s. 814.04 (1), a person who recovers damages under par. 22
(a) or (b) may also recover reasonable attorney fees incurred in connection with the 23
(d) 1. A district attorney or the attorney general may institute an action for 2
injunctive relief against any person who performs or attempts to perform an abortion 3
in violation of sub. (2) or (3).
2. A violation of the terms of an injunction issued as a result of an action under 5
subd. 1. constitutes contempt of the order. The court, after a finding of contempt, 6
shall impose a forfeiture in an amount of $10,000 for the first violation, $50,000 for 7
a 2nd violation, and $100,000 for each subsequent violation. The court may grant 8
any other relief it determines is just and proper in the circumstances. For purposes 9
of this subdivision, each abortion performed that violates the terms of the injunction 10
is considered a separate violation.
(e) A contract is not a defense to an action under this subsection.
(f) Nothing in this subsection limits the common law rights of a person that are 13
not in conflict with sub. (2) or (3).
14(6) Confidentiality in court proceedings.
(a) In every proceeding brought 15
under this section, the court, upon motion or sua sponte, shall rule whether the 16
identity of any woman upon whom an abortion was performed or induced or 17
attempted to be performed or induced shall be kept confidential unless the woman 18
waives confidentiality. If the court determines that a woman's identity should be 19
kept confidential, the court shall issue orders to the parties, witnesses, and counsel 20
and shall direct the sealing of the record and exclusion of individuals from 21
courtrooms or hearing rooms to the extent necessary to safeguard the woman's 22
identity from public disclosure. If the court issues an order to keep a woman's 23
identity confidential, the court shall provide written findings explaining why the 24
woman's identity should be kept confidential, why the order is essential to that end,
how the order is narrowly tailored to its purpose, and why no reasonable less 2
restrictive alternative exists.
(b) Any person, except for a public official, who brings an action under this 4
section shall do so under a pseudonym unless the person obtains the written consent 5
of the woman upon whom an abortion was performed or induced, or attempted to be 6
performed or induced, in violation of sub. (2) or (3).
(c) This section may not be construed to allow the identity of a plaintiff or a 8
witness to be concealed from the defendant.
Nothing in this section may be construed as creating or 10
recognizing a right to abortion or as making lawful an abortion that is otherwise 11