Right to Life Laws Passed

Right-to-Life Laws Passed in Wisconsin

1849 Ban on Abortion.
Wisconsin’s ban on abortion throughout pregnancy, unless it is necessary to save the life of the mother, has been on the books since Wisconsin became a state. Section 940.04 cannot be enforced because the U.S. Supreme Court’s Roe v. Wade decision struck down all state bans on abortion in 1973. Fortunately, when Roe v. Wade is reversed, s. 940.04 will be enforceable again.

1849 Ban on Assisting Suicide.
Wisconsin’s ban on assisted suicide has been on the books since Wisconsin became a state. Section 940.12 provides that “Whoever with intent that another take his or her own life assists such person to commit suicide” is guilty of a crime.

1974 Conscience Protections
Wisconsin has conscience protections for hospitals, hospital employees, physicians, nurses and students, protecting them from being forced to participate in an abortion. Section 253.09 provides various legal protections to enforce these conscience rights.

1978 Public Funding of Abortion Prohibited.
Section 20.927 prohibits state or local funds, and federal funds passing through the state treasury, to be authorized for or paid to a physician or surgeon or a hospital, clinic or other medical facility for the performance of most abortions. The prohibition does not apply to an abortion which is directly and medically necessary to save the life of the woman; in the case of a reported sexual assault or incest; or where, due to a medical condition existing prior to the abortion, the abortion is directly and medically necessary to prevent grave, long-lasting physical health damage to the woman.

1981 Determination of Death.
Section 146.71 provides that an “individual who has sustained either irreversible cessation of circulatory and respiratory functions or irreversible cessation of all functions of the entire brain, including the brain stem, is dead.” The key component of this provision is the determination of brain death. Individuals who are brain dead are dead. On the other hand, individuals who suffer severe injuries to their brains, but still have brain wave activity and a functioning brain stem (which controls heart rate, breathing, and other spontaneous functions) are brain damaged and still very much alive.

1981 Maternity Coverage for Dependent Children.
Under s. 632.78 (7), every group health benefit plan which provides maternity coverage shall provide maternity coverage for all persons covered under the policy. This includes female dependents who become pregnant while they are covered under the plan. These young female dependents will be less likely to have an abortion if there is insurance coverage to cover the costs of maternity care, childbirth and delivery.

1985 Physician Only Requirement.
Under s. 940.15 (5), an abortion can only be performed by a physician. Also, Wisconsin’s unenforceable ban on abortion, s. 940.04, can still be used by Wisconsin to prohibit abortions by non-physicians.

Note: Section 940.15 purportedly prohibits the performance of an abortion after an unborn child reaches viability unless the abortion is necessary to preserve the life or “health” of the woman. In reality, this law does not prohibit post-viability abortions because “health” related abortions may include virtually any reason a woman may have for seeking an abortion, including psychological and emotional factors. 

1985 Immunity for Pregnant Woman Who Has an Abortion.
Section 940.13 provides that no “fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion …” As a general rule, the woman is considered to be another victim of abortion because many times she is usually being pressured, coerced, or forced into having an abortion.

1986 Abortion Reporting Requirement.
Section 69.186 requires annual reports from hospitals, clinics, and other facilities where abortions are performed for each “induced abortion” performed at these facilities. The Wisconsin Department of Health and Family Services collects a report of specific information for each woman who obtains an abortion in this state and publishes an annual demographic summary of this information, protecting the identity of the women and the facilities. A copy of these reports, from 1998 to present, can be obtained at http://dhfs.wisconsin.gov/stats/ITOP.htm.

1991 Restrictions on Use of Genetic Test Results.
Section 631.89 prohibits an insurer from discriminating against individuals based on genetic test results. Specifically, the insurer cannot (1) require an individual to obtain a genetic test or to reveal the results of any genetic test, (2) condition the provision of insurance coverage or health care benefits on genetic testing, or (3) base the cost of insurance coverage or the provision of health care benefits on genetic testing. In 1997, this law was amended to prevent the insurer from getting this information from the individual’s health care provider.

1992 Parental Consent Act.
Under s. 48.375, unless a medical emergency exists, a physician cannot perform an abortion on a minor (someone under 18 years old) unless the minor and one of her parents consents to the abortion or the minor uses a constitutionally required judicial bypass procedure to obtain judicial consent.

Note: There are additional provisions in the parental consent law that can be used to undermine the parental consent requirement. For example, the minor can also get an abortion if an adult family member or a foster parent consents to the abortion. These individuals do not have the legal right to consent to medical treatment for the minor in any other circumstance.

1996 Woman’s Right to Know Act.
Section 253.10 is a detailed informed consent law requiring the voluntary and informed consent of a woman for an abortion. Unless a medical emergency exists, the physician is required to provide specific information to a woman before an abortion can be performed followed by a reflection period (usually 24 hours) to allow the woman the opportunity to consider whether or not she will consent to an abortion. This law also requires that the woman be given printed materials prepared by the state, including a fetal development booklet and a statewide directory of services which includes pro-life pregnancy help centers.

1996 Tax Exemption for Adoption Expenses.
Under s. 71.05 (6) (b) 22, adoptive parents can deduct up to $5,000 of adoption fees, court costs and legal fees related to the adoption of a child. This tax benefit encourages additional adoptions where the financial impacts are a concern.

1997 Prohibition on Funding for Abortion-Related Activities.
Section 20.9275 prohibits public funding of pregnancy programs that engage in abortion-related activities and prohibits pregnancy programs that receive public funds from using the funds for abortion-related activities. The abortion-related activities are: (1) provides abortion services; (2) promotes, encourages or counsels in favor of abortion services; and (3) makes abortion referrals either directly or through an intermediary in any instance other than when an abortion is directly and medically necessary to save the life of the pregnant woman.

1998 Adoption Laws in Wisconsin.
The adoption laws in Wisconsin were comprehensively revised to improve the adoption process in our state and to expand funding for adoption assistance for children at risk of developmental disabilities. These revisions also included an educational component to create greater awareness and acceptance of adoption as an alternative to abortion.

1998 Fetal Homicide and Bodily Injury Act.
Criminal homicide and bodily injury statutes were created to establish an unborn child as a second victim of major homicide and bodily injury crimes, with the same penalties that exist for born persons. These crimes cover causing harm or death to an unborn child in a non-abortion context where the unborn child, the child’s mother, or both, are victims of violence perpetrated by another person.

1998 Partial-Birth Abortion Ban.
Section 940.16, which bans partial-birth abortion in Wisconsin, is currently unenforceable because the U.S. Supreme Court’s Stenberg v. Carhart decision striking down Nebraska’s ban on partial-birth abortion also struck down similar state bans on partial-birth abortion in 2000. After that decision, a federal ban on partial-birth abortion was enacted in 2003. The federal ban was upheld by the U.S. Supreme Court in its 2007 Gonzales v. Carhart decision. The federal partial-birth abortion ban applies throughout the country, so partial-birth abortions are illegal in all states, including Wisconsin, under federal law. Wisconsin’s pro-life legislators are in the process of amending s. 940.16 to have it mirror the language of the federal ban on partial-birth abortion, thus making this gruesome abortion procedure illegal under both federal and state law.

1998 Unborn Children in Need of Protection or Services.
Unborn children, at any stage of pregnancy, who are at risk of serious physical harm due to the severe and habitual use of alcohol or drugs by their expectant mothers were added to the Children’s Code as an unborn child in need of protection or services. This new “Cocaine Mom” law gave the courts authority to require the expectant mother to participate in alcohol and drug abuse services even if she has to be taken into physical custody in order to protect her unborn child.

1999 Abortion Coverage Rider Requirement.
Section 40.98 created a health care coverage plan as an option for private employers. The health care plan does not provide coverage for a non-therapeutic abortion, which is an abortion that is not directly and medically necessary to prevent the death of the woman. Any individual wanting coverage for a non-therapeutic abortion can only obtain this coverage by purchasing an abortion rider that can only be paid for by the individual. Payments for claims for non-therapeutic abortions can only be from the premiums collected for the abortion riders. This mechanism protects all other individuals covered by the health care plan from being forced to pay for non-therapeutic abortions with the premiums they pay for the main plan.

2001 Safe Haven for Newborns Act.
Section 48.195 created a mechanism for parents to relinquish their newborn babies without fear of legal liability. Parents can anonymously and confidentially leave babies 72 hours old or younger in the care of hospitals, police officers or emergency medical technicians. This law protects the lives of newborn infants who are at risk of being killed or left to die by desperate parents.

2002 Second Chance Homes.
Section 46.997 created Second Chance Homes for homeless teenage mothers and expectant mothers who have no support systems within their own families or in the community. These homes provide the teenagers and their babies with a stable and nurturing home environment where they will learn the skills they need to be good and responsible parents and members of society. The Second Chance Home approach provides a real alternative to abortion for many young women in Wisconsin.

2003 Born Alive Infant Protection Act.
By defining “live birth” to include a live birth after an abortion, Wisconsin established a bright line between abortion and infanticide. Wisconsin laws and regulations are required to be interpreted so that every baby born alive after an abortion has the same legal status and legal rights as a baby born alive after a normal delivery resulting from a “natural or induced labor or a cesarean section.” This law was enacted in response to numerous instances where babies who survived abortions were tragically left to die with no attempts made to assess their medical condition or to even provide basic comfort care. (See s. 990.001 (17) and s. 990.01 (19j) for the definitions and the rule of construction.)

2005 Cord Blood Donation. 
Section 146.343 created a mechanism for the donation of umbilical cord blood by informing pregnant women of the option of donating the umbilical cord blood of their newborn babies to accredited cord blood banks. Umbilical cord blood is rich in stem cells. Dozens of diseases and conditions have already been successfully treated with the use of cord blood stem cells. This ethical use of stem cells does not involve the destruction of human life in any manner.