AB448: Bill Text

LRB-3150/1

CMH&PJH:wlj:ph

2011 - 2012 LEGISLATURE

2011 Assembly BILL 448

December 29, 2011 - Introduced by Representatives Craig, Kleefisch, Knilans, Jacque, Wynn, August, Farrow, Kapenga, Kramer, Krug, Kuglitsch, T. Larson, LeMahieu, Nass, Petersen, Pridemore, Stroebel, Van Roy, Klenke, Kaufert and Thiesfeldt, cosponsored by Senators Grothman and Lazich. Referred to Committee on Health.

AB448,1,5 An Act to repeal 895.038 (1) (a); to consolidate, renumber and amend 895.038 (1) (intro.) and (b); to amend 895.038 (2) (a) (intro.), 895.038 (2) (a) 1., 895.038 (2) (a) 2. and 895.038 (4); and to repeal and recreate 940.16 of the statutes; relating to: a prohibition on partial-birth abortions and providing a penalty.

Analysis by the Legislative Reference Bureau

Current statutes contain a prohibition on the performance of partial-birth abortions and define a partial-birth abortion as one during which a person partially delivers a living fetus, causes the death of the living fetus with the intent to kill the fetus, and then completes delivery of the fetus. A person who performs a partial-birth abortion is guilty of a Class A felony. Current statutes allow an exception if the partial-birth abortion is performed to save the life of the pregnant woman and no other option is available. Current law also grants a civil cause of action to the father of a fetus aborted by a partial-birth abortion if the father did not consent to the partial-birth abortion procedure.

After the United States Supreme Court, in Stenberg v. Carhart, 530 U.S. 914 (2000), invalidated a Nebraska statute that prohibited "partial-birth abortion," the Seventh Circuit Court of Appeals held that the current Wisconsin statute prohibiting partial-birth abortion had the same constitutional flaws as the Nebraska statute and enjoined its enforcement. Planned Parenthood of Wisconsin et al. v. Doyle, et al., 249 F.3d 603 (7th Cir. 2001).

In 2007, the United States Supreme Court upheld a federal ban on partial-birth abortion, finding that the federal ban did not unduly burden a woman's right to an abortion and that the federal statute set forth specific "landmarks" that clearly delineate when a partial-birth abortion is being performed. Gonzales v. Carhart, 550 U.S. 124 (2007).

Under this bill, the current prohibition on the performance of partial-birth abortions is changed to define "partial-birth abortion" as an abortion during which a person vaginally delivers a living fetus until a certain proportion of the fetal body is outside of his or her mother's body and then kills the partially delivered fetus. This definition is the same as that under the federal ban, as upheld by Gonzales. Under this bill, a physician or other person who violates the prohibition is guilty of a Class I felony. As under federal law, this bill prohibits the prosecution of a woman upon whom a partial-birth abortion is performed. This bill also eliminates any exception to the prohibition.

The bill also specifies that a civil cause of action granted to the father of a fetus aborted by a partial-birth abortion is limited to cases in which the father was married to the mother at the time the abortion was performed.

Because this bill creates a new crime or revises a penalty for an existing crime, the Joint Review Committee on Criminal Penalties may be requested to prepare a report concerning the proposed penalty and the costs or savings that are likely to result if the bill is enacted.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

AB448, s. 1 Section 1. 895.038 (1) (intro.) and (b) of the statutes are consolidated, renumbered 895.038 (1) and amended to read:

AB448,2,4 895.038 (1) In this section: (b) "Partial-birth, "partial-birth abortion" has the meaning given in s. 940.16 (1) (a).

AB448, s. 2 Section 2. 895.038 (1) (a) of the statutes is repealed.

AB448, s. 3 Section 3. 895.038 (2) (a) (intro.) of the statutes is amended to read:

AB448,2,9 895.038 (2) (a) (intro.) Except as provided in par. (b), any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion and thereby kills a fetus:

AB448, s. 4 Section 4. 895.038 (2) (a) 1. of the statutes is amended to read:

AB448,3,3 895.038 (2) (a) 1. If the person mother on whom a partial-birth abortion was performed was a minor, the parent of the minor has not attained the age of 18 years at the time of the abortion, the maternal grandparents of the fetus.

AB448, s. 5 Section 5. 895.038 (2) (a) 2. of the statutes is amended to read:

AB448,3,7 895.038 (2) (a) 2. The father, if married to the mother at the time she receives the partial-birth abortion procedure, of the child fetus aborted by the partial-birth abortion.

AB448, s. 6 Section 6. 895.038 (4) of the statutes is amended to read:

AB448,3,11 895.038 (4) Subsection (2) applies even if the mother of the child fetus aborted by the partial-birth abortion consented to the performance of the partial-birth abortion.

AB448, s. 7 Section 7. 940.16 of the statutes is repealed and recreated to read:

AB448,3,13 940.16 Partial-birth abortion. (1) In this section:

AB448,3,15 (a) "Partial-birth abortion" means an abortion in which the person performing the abortion does all of the following:

AB448,3,20 1. Deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus.

AB448,3,22 2. Performs the overt act specified in subd. 1., other than completion of the delivery, that kills the partially delivered living fetus.

AB448,3,23 (b) "Physician" has the meaning given in s. 448.01 (5).

AB448,3,25 (2) Any physician or any other person who intentionally performs a partial-birth abortion is guilty of a Class I felony.

AB448,4,2 (3) Subsection (2) and ss. 939.05, 939.30, and 939.31 do not apply to a woman upon whom a partial-birth abortion is performed.

AB448,4,3 (End)