253.10(3)
(3) Voluntary and informed consent. 253.10(3)(a)(a)
Generally. An abortion may not be performed or induced unless the woman upon whom the abortion is to be performed or induced has and, if the woman is a minor and
s. 48.375 (4) (a) 2. does not apply, the individual who also gives consent under
s. 48.375 (4) (a) 1. have given voluntary and informed written consent under the requirements of this section.
253.10(3)(b)
(b)
Voluntary consent. Consent under this section to an abortion is voluntary only if the consent is given freely and without coercion by any person.
253.10(3)(c)
(c)
Informed consent. Except if a medical emergency exists, a woman's consent to an abortion is informed only if all of the following first take place:
253.10(3)(c)1.
1. Except as provided in
sub. (3m), at least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion or any other qualified physician has, in person, orally informed the woman of all of the following:
253.10(3)(c)1.a.
a. Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant.
253.10(3)(c)1.b.
b. The probable gestational age of the unborn child at the time that the information is provided. The physician or other qualified physician shall also provide this information to the woman in writing at this time.
253.10(3)(c)1.c.
c. The particular medical risks, if any, associated with the woman's pregnancy.
253.10(3)(c)1.d.
d. The probable anatomical and physiological characteristics of the woman's unborn child at the time the information is given.
253.10(3)(c)1.e.
e. The details of the medical or surgical method that would be used in performing or inducing the abortion.
253.10(3)(c)1.f.
f. The medical risks associated with the particular abortion procedure that would be used, including the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility.
253.10(3)(c)1.g.
g. That fetal ultrasound imaging and auscultation of fetal heart tone services are available that enable a pregnant woman to view the image or hear the heartbeat of her unborn child. In so informing the woman and describing these services, the physician shall advise the woman as to how she may obtain these services if she desires to do so.
253.10(3)(c)1.h.
h. The recommended general medical instructions for the woman to follow after an abortion to enhance her safe recovery and the name and telephone number of a physician to call if complications arise after the abortion.
253.10(3)(c)1.i.
i. If, in the reasonable medical judgment of the physician, the woman's unborn child has reached viability, that the physician who is to perform or induce the abortion is required to take all steps necessary under
s. 940.15 to preserve and maintain the life and health of the child.
253.10(3)(c)1.j.
j. Any other information that a reasonable patient would consider material and relevant to a decision of whether or not to carry a child to birth or to undergo an abortion.
253.10(3)(c)1.k.
k. That the woman may withdraw her consent to have an abortion at any time before the abortion is performed or induced.
253.10(3)(c)1.L.
L. That, except as provided in
sub. (3m), the woman is not required to pay any amount for performance or inducement of the abortion until at least 24 hours have elapsed after the requirements of this paragraph are met.
253.10(3)(c)2.
2. Except as provided in
sub. (3m), at least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion, a qualified person assisting the physician or another qualified physician has, in person, orally informed the woman of all of the following:
253.10(3)(c)2.a.
a. That benefits under the medical assistance program may be available for prenatal care, childbirth and neonatal care.
253.10(3)(c)2.b.
b. That the father of the unborn child is liable for assistance in the support of the woman's child, if born, even if the father has offered to pay for the abortion.
253.10(3)(c)2.c.
c. That the woman has a legal right to continue her pregnancy and to keep the child; to place the child in a foster home or treatment foster home for 6 months or to petition a court for placement of the child in a foster home, treatment foster home or group home or with a relative; or to place the child for adoption under a process that involves court approval both of the voluntary termination of parental rights and of the adoption.
253.10(3)(c)2.d.
d. That the woman has the right to receive and review the printed materials described in
par. (d). The physician or qualified person assisting the physician shall physically give the materials to the woman and shall, in person, orally inform her that the materials are free of charge, have been provided by the state and describe the unborn child and list agencies that offer alternatives to abortion and shall provide her with the current updated copies of the printed materials free of charge.
253.10(3)(c)2.e.
e. If the woman has received a diagnosis of disability for her unborn child, that the printed materials described in
par. (d) contain information on community-based services and financial assistance programs for children with disabilities and their families, information on support groups for people with disabilities and parents of children with disabilities and information on adoption of children with special needs.
253.10(3)(c)2.f.
f. If the woman asserts that her pregnancy is the result of sexual assault or incest, that the printed materials described in
par. (d) contain information on counseling services and support groups for victims of sexual assault and incest and legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father's parental rights.
253.10(3)(c)2.g.
g. That the printed materials described in
par. (d) contain information on the availability of public and private agencies and services to provide the woman with information on family planning, as defined in
s. 253.07 (1) (a), including natural family planning information.
253.10(3)(c)3.
3. The information that is required under
subds. 1. and
2. is provided to the woman in an individual setting that protects her privacy, maintains the confidentiality of her decision and ensures that the information she receives focuses on her individual circumstances. This subdivision may not be construed to prevent the woman from having a family member, or any other person of her choice, present during her private counseling.
253.10(3)(c)4.
4. Whoever provides the information that is required under
subd. 1. or
2., or both, provides adequate opportunity for the woman to ask questions, including questions concerning the pregnancy, her unborn child, abortion, foster care and adoption, and provides the information that is requested or indicates to the woman where she can obtain the information.
253.10(3)(c)5.
5. The woman certifies in writing on a form that the department shall provide, prior to performance or inducement of the abortion, that the information that is required under
subds. 1. and
2. has been provided to her in the manner specified in
subd. 3., that she has been offered the information described in
par. (d) and that all of her questions, as specified under
subd. 4., have been answered in a satisfactory manner. The physician who is to perform or induce the abortion or the qualified person assisting the physician shall write on the certification form the name of the physician who is to perform or induce the abortion. The woman shall indicate on the certification form who provided the information to her and when it was provided.
253.10(3)(c)6.
6. Prior to the performance or the inducement of the abortion, the physician who is to perform or induce the abortion or the qualified person assisting the physician receives the written certification that is required under
subd. 5. The physician or qualified person assisting the physician shall place the certification in the woman's medical record and shall provide the woman with a copy of the certification.
253.10(3)(c)7.
7. If the woman considering an abortion is a minor, unless
s. 48.375 (4) (a) 2. applies, the requirements to provide information to the woman under
subds. 1. to
6. apply to also require provision of the information to the individual whose consent is also required under
s. 48.375 (4) (a) 1. If the woman considering an abortion has been adjudicated incompetent under
ch. 880, the requirements to provide information to the woman under
subds. 1. to
6. apply to also require provision of the information to the person appointed as the woman's guardian.
253.10(3)(d)
(d)
Printed information. By the date that is 60 days after May 16, 1996, the department shall cause to be published in English, Spanish, and other languages spoken by a significant number of state residents, as determined by the department, materials that are in an easily comprehensible format and are printed in type of not less than 12-point size. The department shall distribute a reasonably adequate number of the materials to county departments as specified under
s. 46.245 and upon request, shall annually review the materials for accuracy and shall exercise reasonable diligence in providing materials that are accurate and current. The materials shall be all of the following:
253.10(3)(d)1.
1. Geographically indexed materials that are designed to inform a woman about public and private agencies, including adoption agencies, and services that are available to provide information on family planning, as defined in
s. 253.07 (1) (a), including natural family planning information, to provide ultrasound imaging services, to assist her if she has received a diagnosis that her unborn child has a disability or if her pregnancy is the result of sexual assault or 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 available, a description of the services that they offer and a description of the manner in which they may be contacted, including telephone numbers and addresses, or, at the option of the department, the materials shall include a toll-free, 24-hour telephone number that may be called to obtain an oral listing of available agencies and services in the locality of the caller and a description of the services that the agencies offer and the manner in which they may be contacted. The materials shall provide information on the availability of governmentally funded programs that serve pregnant women and children. Services identified for the woman shall include medical assistance for pregnant women and children under
s. 49.47 (4) (am), the availability of family or medical leave under
s. 103.10, the Wisconsin works program under
ss. 49.141 to
49.161, child care services, child support laws and programs and the credit for expenses for household and dependent care and services necessary for gainful employment under section
21 of the internal revenue code. The materials shall state that it is unlawful to perform an abortion for which consent has been coerced, that any physician who performs or induces an abortion without obtaining the woman's voluntary and informed consent is liable to her for damages in a civil action and is subject to a civil penalty, that the father of a child is liable for assistance in the support of the child, even in instances in which the father has offered to pay for an abortion, and that adoptive parents may pay the costs of prenatal care, childbirth and neonatal care. The materials shall include information, for a woman whose pregnancy is the result of sexual assault or incest, on legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father's parental rights. The materials shall state that fetal ultrasound imaging and auscultation of fetal heart tone services are obtainable by pregnant women who wish to use them and shall describe the services.
253.10(3)(d)2.
2. Materials, including photographs, pictures or drawings, that are designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments for the first 16 weeks of her pregnancy and at 4-week gestational increments from the 17th week of the pregnancy to full term, including any relevant information regarding the time at which the unborn child could possibly be viable. The pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages, including appearance, mobility, brain and heart activity and function, tactile sensitivity and the presence of internal organs and external members. The materials shall also contain objective, accurate information describing the methods of abortion procedures commonly employed, the medical and psychological risks commonly associated with each such procedure, including the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility, and the medical risks commonly associated with carrying a child to birth.
253.10(3)(d)3.
3. A certification form for use under
par. (c) 5. that lists, in a check-off format, all of the information required to be provided under that subdivision.
253.10(3)(e)
(e)
Requirement to obtain materials. A physician who intends to perform or induce an abortion or another qualified physician, who reasonably believes that he or she might have a patient for whom the information under
par. (d) is required to be given, shall request a reasonably adequate number of the materials that are described under
par. (d) from the department under
par. (d) or from a county department as specified under
s. 46.245.
253.10(3)(f)
(f)
Medical emergency. If a medical emergency exists, the physician who is to perform or induce the abortion necessitated by the medical emergency shall inform the woman, prior to the abortion if possible, of the medical indications supporting the physician's reasonable medical judgment that an immediate abortion is necessary to avert her death or that a 24-hour delay in performance or inducement of an abortion will create a serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions. If possible, the physician shall obtain the woman's written consent prior to the abortion. The physician shall certify these medical indications in writing and place the certification in the woman's medical record.
253.10(3)(g)
(g)
Presumptions. Satisfaction of the conditions required under
par. (c) creates a rebuttable presumption that the woman's consent and, if the woman is a minor and if
s. 48.375 (4) (a) 2. does not apply, the consent of the individual who also gives consent under
s. 48.375 (4) (a) 1. to an abortion is informed. The presumption of informed consent may be overcome by a preponderance of evidence that establishes that the consent was obtained through fraud, negligence, deception, misrepresentation or omission of a material fact. There is no presumption that consent to an abortion is voluntary.
253.10(3m)
(3m) Pregnancy as the result of sexual assault or incest. 253.10(3m)(a)1.
1. The woman alleges that the pregnancy is the result of sexual assault under
s. 940.225 (1),
(2) or
(3) and states that a report alleging the sexual assault has been made to law enforcement authorities.
253.10(3m)(a)2.
2. Whoever provides the information that is required under
sub. (3) (c) 1. or
2., or both, confirms with law enforcement authorities that a report on behalf of the woman about the sexual assault has been made to law enforcement authorities, makes a notation to this effect and places the notation in the woman's medical record.
253.10(3m)(b)1.
1. The woman alleges that the pregnancy is the result of incest under
s. 948.06 (1) and states that a report alleging the incest has been made to law enforcement authorities.
253.10(3m)(b)2.
2. Whoever provides the information that is required under
sub. (3) (c) 1. or
2., or both, confirms with law enforcement authorities that a report on behalf of the woman about the incest has been made to law enforcement authorities, makes a notation to this effect and places the notation in the woman's medical record.
253.10(3m)(c)
(c) Upon receipt by the law enforcement authorities of a request for confirmation under
par. (a) 2. or
(b) 2., and after reasonable verification of the identity of the woman and her consent to release of the information, the law enforcement authorities shall confirm whether or not the report has been made. No record of a request or confirmation made under this paragraph may be disclosed by the law enforcement authorities.
253.10(4)
(4) Hotline. The department may maintain a toll-free telephone number that is available 24 hours each day, to provide the materials specified in
sub. (3) (d) 1.
253.10(5)
(5) Penalty. Any person who violates
sub. (3) or
(3m) (a) 2. or
(b) 2. shall be required to forfeit not less than $1,000 nor more than $10,000.
253.10(6)(a)(a) A person who violates
sub. (3) or
(3m) (a) 2. or
(b) 2. is liable to the woman on or for whom the abortion was performed or induced for damages arising out of the performance or inducement of the abortion, including damages for personal injury and emotional and psychological distress.
253.10(6)(b)
(b) A person who has been awarded damages under
par. (a) shall, in addition to any damages awarded under
par. (a), be entitled to not less than $1,000 nor more than $10,000 in punitive damages for a violation that satisfies a standard under
s. 895.85 (3).
253.10(6)(c)
(c) A conviction under
sub. (5) is not a condition precedent to bringing an action, obtaining a judgment or collecting the judgment under this subsection.
253.10(6)(d)
(d) Notwithstanding
s. 814.04 (1), a person who recovers damages under
par. (a) or
(b) may also recover reasonable attorney fees incurred in connection with the action.
253.10(6)(e)
(e) A contract is not a defense to an action under this subsection.
253.10(6)(f)
(f) Nothing in this subsection limits the common law rights of a person that are not in conflict with
sub. (3).
253.10(7)
(7) Affirmative defense. No person is liable under
sub. (5) or
(6) or under
s. 441.07 (1) (f),
448.02 (3) (a) or
457.26 (2) (gm) for failure under
sub. (3) (c) 2. d. to provide the printed materials described in
sub. (3) (d) to a woman or for failure under
sub. (3) (c) 2. d.,
e.,
f. or
g. to describe the contents of the printed materials if the person has made a reasonably diligent effort to obtain the printed materials under
sub. (3) (e) and
s. 46.245 and the department and the county department under
s. 46.215,
46.22 or
46.23 have not made the printed materials available at the time that the person is required to give them to the woman.
253.10(8)
(8) Construction. Nothing in this section may be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.
253.10 AnnotationSection 253.10 (3) (c) 1. j. is unconstitutional. Karlin v. Foust,
975 F. Supp. 1177 (1997). This holding was not subject to the appeal in Karlin v. Foust,
188 F.3d 446.
253.10 Annotation
Sub. (2) (d) is constitutional and preempts the operation of s. 48.374 (5) (b) 1. in the case of emergency abortions for minors. Sub. (3) (c) 2. is constitutional; physicians may rely on their "best medical judgment" in delivering the content to be conveyed to the patient on the specific listed topics and cannot be held liable because prosecutors disagree with information provided to a woman on a certain topic. Sub. (3) (c) 1. g. is constitutional. Karlin v. Foust,
188 F.3d 446 (7th Cir. 1999).
253.11
253.11
Infant blindness. 253.11(1)(1) For the prevention of ophthalmia neonatorum or infant blindness the attending physician or midwife shall use a prophylactic agent approved by the department.
253.11(2)
(2) In a confinement not attended by a physician or nurse-midwife, if one or both eyes of an infant become inflamed, swollen and red or show an unnatural discharge at any time within 2 weeks after birth, the nurse, parents, or other person in charge shall report the facts in writing within 6 hours to the local health officer who shall immediately warn the person of the danger. The local health officer shall employ at the expense of the local health department a competent physician to examine and treat the case.
253.11(3)
(3) Any person who violates this section may be required to forfeit not more than $1,000.
253.11 History
History: 1979 c. 221;
1987 a. 332;
1993 a. 27 s.
314; Stats. 1993 s. 253.11.
253.115
253.115
Newborn hearing screening programs. 253.115(1)(a)
(a) "Hearing loss" means an inability in one or both ears to detect sounds at 30 decibels hearing level or greater in the frequency region of 500 to 4,000 hertz that affects speech recognition and auditory comprehension.
253.115(1)(b)
(b) "Hertz" means a unit of frequency equal to one cycle per second.
253.115(1)(d)
(d) "Infant" means a child from birth to 3 months of age.
253.115(1)(e)
(e) "Newborn hearing screening program" means a system of a hospital under which an infant may be tested, using currently available medical techniques, to determine if the infant has a hearing loss.
253.115(2)
(2) Beginning July 1, 2002, the department shall annually collect information from hospitals for the previous calendar year concerning the numbers of deliveries in each hospital and the availability in each hospital of a newborn hearing screening program. From this information, by July 31, 2003, and annually thereafter, the department shall determine the percentage of deliveries in this state that are performed in hospitals that have newborn hearing screening programs and shall report this information to the appropriate standing committees of the legislature under
s. 13.172 (3).
253.115(3)
(3) If, by August 5, 2003, the department determines that fewer than 88% of all deliveries in this state are performed in hospitals that have a newborn hearing screening program and so notifies the hospitals, every hospital shall, by January 1, 2004, have a newborn hearing screening program that is available to all infants who are delivered in the hospital.
253.115 History
History: 1999 a. 9,
185.
253.12
253.12
Birth defect prevention and surveillance system. 253.12(1)(a)
(a) "Birth defect" means any of the following conditions affecting an infant or child that occurs prior to or at birth and that requires medical or surgical intervention or interferes with normal growth and development:
253.12(1)(b)
(b) "Pediatric specialty clinic" means a clinic the primary purpose of which is to provide pediatric specialty diagnostic, counseling and medical management services to persons with birth defects by a physician subspecialist.
253.12(1)(c)
(c) "Infant or child" means a human being from birth to the age of 2 years.
253.12(2)(a)(a) Except as provided in
par. (b), all of the following shall report in the manner prescribed by the department under
sub. (3) (a) 3. a birth defect in an infant or child:
253.12(2)(a)1.
1. A pediatric specialty clinic in which the birth defect is diagnosed in an infant or child or treatment for the birth defect is provided to the infant or child.
253.12(2)(a)2.
2. A physician who diagnoses the birth defect or provides treatment to the infant or child for the birth defect.
253.12(2)(am)
(am) Any hospital in which a birth defect is diagnosed in an infant or child or treatment is provided to the infant or child may report the birth defect in the manner prescribed by the department under
sub. (3) (a) 3.
253.12(2)(b)
(b) No person specified under
par. (a) need report under
par. (a) if that person knows that another person specified under
par. (a) or
(am) has already reported to the department the required information with respect to the same birth defect of the same infant or child.
