ANTI-CHOICE LAWS
Abortion Bans
NEAR-TOTAL
Wisconsin has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.
The ban provides that any person, except a woman upon herself, who performs an abortion of an "unborn quick child" not necessary to preserve the woman's life is guilty of a felony. Any woman who consents to an abortion or performs an abortion upon herself of an "unborn quick child" may be fined up to $200, imprisoned for up to six months, or both. Wis. Stat. Ann. § 940.04 (Enacted 1956; Last Amended 2001). Wisconsin later repealed the provision allowing prosecution of a woman for having an abortion. Wis. Stat. Ann. § 940.13 (Enacted 1985).
Prior to the U.S. Supreme Court decision in Roe, a court held that some provisions of § 940.04 were unconstitutional and enjoined their enforcement. Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970), appeal dismissed, 400 U.S. 1 (1970), supplemental opinion, 320 F. Supp. 219 (E.D. Wis. 1970), vacated and remanded, 402 U.S. 903 (1971).
AFTER 12 WEEKS
Wisconsin's unconstitutional and unenforceable ban outlaws abortions performed as early as twelve weeks. Wis. Stat. Ann. §§ 895.038 (Enacted 1998), 940.16 (Enacted 1998).
A court held that Wisconsin's ban is unconstitutional because it lacks an exception to protect women's health and unduly burdens a woman's right to choose. The court issued a permanent injunction prohibiting the law's enforcement. Hope Clinic v. Ryan, 249 F.3d 603 (7th Cir. 2001). The U.S. Supreme Court previously held that a similar ban on abortion that lacks an exception to protect a woman's health and that bans more than one procedure places an undue burden on a woman's right to choose and is unconstitutional. Stenberg v. Carhart, 530 U.S. 914 (2000). The Wisconsin attorney general issued an informal opinion stating that the ban is still unconstitutional and unenforceable following the Supreme Court's April 2007 decision in Gonzales v. Carhart. Letter from J.B. Van Hollen, Attorney General, State of Wisconsin, to Scott Fitzgerald, State Senator, Wisconsin Legislature and Michael Huebsch, State Representative, Wisconsin Legislature (May 31, 2007), available at http://www.doj.state.wi.us/ag/opinions/2007_05_31Huebsch-Fitzgerald.pdf.
Wisconsin's unconstitutional and unenforceable law makes the performance of any abortion procedure that falls within a broad definition a felony, unless the procedure is necessary to preserve the life of a woman endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical disorder, physical illness, or physical injury caused by or arising from the pregnancy itself, and no other medical procedure will suffice. Wis. Stat. Ann. §§ 895.038 (Enacted 1998), 940.16 (Enacted 1998).
There is also a Federal Abortion Ban, which applies nationwide regardless of state law. The federal ban prohibits the performance of certain second trimester abortions and does not contain an exception for a woman's health. In April 2007, the U.S. Supreme Court upheld the ban, making it the first time since Roe v. Wade that the Court has upheld a ban on a previability abortion procedure. Click here to read more about the Federal Abortion Ban.
Biased Counseling & Mandatory Delay
A woman may not have an abortion until at least 24 hours after a physician orally, in person, and in an individual setting tells her: (1) the probable gestational age and anatomical and physiological characteristics of the "unborn child"; (2) the details of the procedure; (3) the medical risks associated with the procedure, including infection, hemorrhage, "psychological trauma," endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies, and infertility; (4) the particular medical risks of her pregnancy; (5) that services are available to enable a pregnant woman to view the image or hear the heartbeat of her "unborn child" and how she may obtain these services; and (6) that if the "unborn child" has reached viability, the physician is required to take "all steps necessary" under the law to preserve its life and health.
In addition, at least 24 hours prior to an abortion, the woman must receive, orally, in person, and in an individual setting, a state-mandated lecture from a physician, certified social worker, registered nurse, or physician's assistant that includes: (1) that medical assistance benefits may be available for prenatal care, childbirth, and neonatal care; (2) that the "father of the unborn child" is liable for child support even if he offered to pay for the abortion; (3) that the woman has a legal right to continue her pregnancy and to keep the child, place the child in foster care, or put the child up for adoption; (4) that the woman has the right to review state-prepared materials that describe the "unborn child" and list agencies that offer alternatives to abortion; (5) if the "unborn child" has been diagnosed with a disability, that the state-prepared materials include information on services and programs for children with disabilities and their families and on adoption of children with special needs; and (6) if the pregnancy is the result of sexual assault or incest, that the state-prepared materials include information on counseling services and legal protections available to the woman if she wishes to terminate the "father's" parental rights or to oppose the establishment of paternity.
At least 24 hours prior to an abortion, the woman must be offered state-prepared materials that must: (1) describe with photographs, pictures, or drawings the anatomical and physiological characteristics of the "unborn child" at two-week gestational increments for the first 16 weeks and at four-week gestational increments from the 17th week until full term; (2) describe abortion methods and the medical and psychological risks associated with each method, including infection, hemorrhage, "psychological trauma," endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies, and infertility; (3) describe the medical risks associated with carrying a pregnancy to term; (4) provide a comprehensive list of: (a) public and private agencies, including adoption agencies, and services available to assist the woman through pregnancy, upon childbirth, and while the child is dependent; (b) services available to provide ultrasound imaging; and (c) services available to assist her if the "unborn child" has been diagnosed with a disability, or if the pregnancy is the result of rape or incest, or, at the option of the department, include a toll-free 24-hour hotline to obtain such a list; (5) list publicly funded programs that serve pregnant women and children; (6) state that a physician who provides abortion services without a woman's "informed" consent is liable to her for damages in a civil action; (7) state that the "father" is liable for child support, even if he offered to pay for an abortion, and that adoptive parents may pay the costs of prenatal care, childbirth, and neonatal care; (8) include information on legal protections available to a woman whose pregnancy is the result of sexual assault or incest; and (9) state that fetal ultrasound imaging and auscultation of fetal heart-tone services are available and describe the services.
Wis. Stat. Ann. § 253.10 (Enacted 1985). A court held that this law is constitutional. Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999).
The state-prepared materials include enlarged color photographs of fetuses. Div. of Pub. Health, Wis. Dep't of Health & Family Servs., Information about Fetal Development, Childbirth and Abortion (Rev. June 1998).
Counseling Ban/Gag Rule
No state, local, or federal funds passing through the state for pregnancy programs, projects, or services including family-planning services may be used to provide abortion services, counseling, or referrals, except referrals if necessary to preserve the woman's life. Wis. Stat. Ann. § 20.9275 (Enacted 1997; Last Amended 2003).
Insurance Prohibition for Abortion
Insurance provided through the Private Employer Health Care Purchasing Alliance, a voluntary program for private employers, may not include coverage for abortion unless directly and medically necessary to preserve the woman's life. Coverage for abortions not medically necessary to preserve the woman's life may be obtained only by an optional rider or supplemental coverage provision that is offered and provided on an individual basis for which an additional premium is paid. However, nothing in the act requires an insurer or employer to offer or provide coverage of abortions. Wis. Stat. Ann. §§ 40.98 (1)(g), (2)(bm) (Enacted 1999); Wis. Legis. Reference Bureau, Private Employer Health Care Coverage, Budget Br. 99-9 (Nov. 1999).
Refusal to Provide Medical Services
ABORTION REFUSAL CLAUSE
Wisconsin allows certain individuals or entities to refuse to provide abortion services.
To whom does the refusal clause apply? Hospitals, physicians or other persons associated with, employed by, or on the staff of a hospital.
What does the refusal clause allow? No physician or other person associated with, employed by, or on the staff of a hospital who objects in writing on moral or religious grounds may be required to participate in an abortion. The refusal of a person to participate may not be a basis for damages, discrimination in employment or education, disciplinary action, or other recriminatory action.
No hospital may be required to admit any woman or allow the use of its facilities for the purpose of performing an abortion. The refusal of a hospital on moral or religious grounds to permit or perform an abortion may not be a basis for civil damages.
No individual or entity may be required to participate in or make its facilities available for abortion contrary to religious beliefs or moral convictions because of the receipt of any grant, contract, or loan under state or federal law.
Must the refusal be in writing? Yes. Party must state objection in writing.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Wis. Stat. Ann. §§ 253.09 (Enacted 1974; Last Amended 1999), 441.06(6) (Enacted 1921; Last Amended 2005), 448.03(5) (Enacted 1976; Last Amended 2005).
FAMILY PLANNING REFUSAL CLAUSE
Wisconsin allows certain individuals or entities to refuse to provide family planning and birth control services.
To whom does the refusal clause apply? State employees.
What does the refusal clause allow? No state employee, who objects based on personal beliefs, may be required to offer family planning services. The refusal to offer family planning services shall not be the basis for discrimination. Agency directors or supervisors shall reassign the employee's duties to ensure that family planning services are delivered.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for family planning and birth control services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No. However, the directors or supervisors of the agencies shall reassign the duties of employees in order to carry out duties related to family planning services.
Wis. Stat. Ann. § 253.07(3)(b) (Enacted 1978; Last Amended 1999).
STERILIZATION REFUSAL CLAUSE
Wisconsin allows certain individuals or entities to refuse to perform or participate in sterilizing procedures.
To whom does the refusal clause apply? Hospitals, physicians or other persons associated with, employed by, or on the staff of a hospital.
What does the refusal clause allow? No physician or other person associated with, employed by, or on the staff of a hospital who objects in writing on moral or religious grounds may be required to participate in a sterilization. The refusal of a person to participate may not be a basis for damages, discrimination in employment or education, disciplinary action, or other recriminatory action.
No hospital may be required to admit any woman or allow the use of its facilities for the purpose of performing a sterilization. The refusal of a hospital on moral or religious grounds to permit or perform a sterilization may not be a basis for civil damages.
No individual or entity may be required to participate in or make its facilities available for sterilization contrary to religious beliefs or moral convictions because of the receipt of any grant, contract, or loan under state or federal law.
Must the refusal be in writing? Yes.
Does the law require the refusing entity to notify the persons affected? No.
Are there circumstances under which a refusal clause may not be exercised? No.
Does the law require the refusing individual or entity to provide medically and factually accurate information or provide a referral for abortion services? No.
Does the law provide a mechanism for women to otherwise obtain specific reproductive health services, information, or referrals if an individual and/or entity exercises a refusal clause? No.
Wis. Stat. Ann. §§ 253.09 (Enacted 1974; Last Amended 1999), 441.06(6) (Enacted 1921; Last Amended 2005), 448.03(5) (Enacted 1976; Last Amended 2005).
Restrictions on Low-Income Women's Access to Abortion
Wisconsin prohibits public funding for abortion for women eligible for state medical assistance for general health care unless: (1) the procedure is directly and medically necessary to preserve her life; (2) the procedure is directly and medically necessary due to an existing medical condition to prevent grave, long-lasting physical health damage to the woman; or (3) the pregnancy is the result of sexual assault or incest reported to law enforcement authorities. Wis. Stat. Ann. § 20.927 (Enacted 1978).
Restrictions on Young Women's Access to Abortion
Wisconsin law restricts young women's access to abortion.
Is the law enforceable? Yes.
Who is considered a minor? A young woman under the age of 18 who has never been married or previously given birth or freed from the care, custody, and control of her parents.
What is required - parental consent or parental notice? Consent.
Who must provide consent? One parent.
Are there other trusted adults who may provide consent instead? Yes, consent may be given by a grandparent, aunt, uncle, or sibling who is at least 25 years old.
What is the process for obtaining consent? A young woman may not obtain an abortion unless the attending physician secures "voluntary and informed" consent of one parent or adult family member.
May the parental mandate be waived if a young woman is a victim of rape or incest? Yes, if the young woman provides the physician with a written and signed statement that the pregnancy is the result of either sexual assault in which the minor did not indicate a freely given agreement to have sexual intercourse or sexual intercourse with a "caregiver." The physician must place the statement in her medical record and report the sexual assault or sexual intercourse.
May the parental mandate be waived if a young woman is a victim of child abuse? Yes, if the young woman provides the physician with a written and signed statement that a parent or adult family member has abused her and the physician places the statement in her medical record and reports the abuse.
May the parental mandate be waived if a young woman's health is threatened? Yes, but only if the physician determines that a medical emergency exists, defined as a medical condition of the young woman that necessitates an immediate abortion to preserve her life or for which delay will create "serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions."
May the parental mandate be waived under any other circumstances? Yes, if a psychiatrist or psychologist states in writing that he or she believes, to the best of his or her professional judgment, that the young woman is likely to commit suicide rather than file a judicial bypass petition or approach her parent for consent. In addition, the parental mandate may be waived if the young woman obtains permission from a judge.
If a young woman must obtain permission from a judge, what is the process? She must secure a court order stating either that she is mature and well informed enough to make her own decision or that an abortion is in her best interests.
Are there other significant requirements under the law? No.
Has a court considered the constitutionality of this law? No.
Other information about the law: None.
Wis. Stat. Ann. §§ 48.375 (Enacted 1991; Last Amended 2001), 253.10 (Enacted 1985; Last Amended 2005).
Targeted Regulation of Abortion Providers (TRAP)
Wisconsin imposes a variety of burdensome requirements on abortion providers that are not imposed on other health care providers, including:
Restrictions on Where Abortions May Be Performed
Wisconsin places medically unnecessary restrictions on where abortions may be performed.
Physicians may only perform first-trimester abortions within 30 minutes traveling time of a hospital. Wis. Admin. Code § Med. 11.04(g). No exception is made for rural areas or for non-surgical abortions.
Wisconsin has an unconstitutional requirement that all abortions after the first trimester be performed in a hospital. Wis. Admin. Code § Med. 11.05.
A court held this requirement to be unconstitutional and unenforceable. Christensen v. Wis. Med. Bd., 551 F. Supp. 565 (W.D. Wis. 1982). See also Akron v. Akron Ctr. for Reprod. Health, 462 U.S. 416 (1983) (holding second trimester hospitalization requirement unconstitutionally burdens a woman's right to choose an abortion).
Restrictions on Who May Perform Abortions
Wisconsin prohibits certain qualified health care professionals from performing abortions.
Only a physician may perform an abortion. Wis. Stat. Ann. § 940.04(5)(a) (Enacted 1956; Last Amended 2003); Wis. Admin. Code § Med. 11.03.
PRO-CHOICE LAWS
Contraceptive Equity
Wisconsin law requires health-insurance plans and employers that provide insurance coverage that cover prescription medication to provide equitable coverage for contraception.
What is required? If a health-insurance plan provides coverage for prescription medication, outpatient health-care services, and preventive services, then it must cover FDA-approved prescription contraception. Additionally, if an employer provides its employees insurance coverage for prescription medication, it must provide the same coverage for contraception.
To which insurance plans does the law apply? Every disability insurance policy and self-insured health plan of the state or of a county, city, town, village, or school district. A health-care plan offered by a limited-service health organization, a preferred-provider plan, a health plan that is not a defined network plan, a long-term care insurance policy, or a Medicare replacement or supplement policy are exempt from the contraceptive-equity law.
Does the law provide additional protections for women? Yes. Insurers must cover outpatient consultations, examinations, procedures and medical services that are necessary to prescribe, administer, maintain, or remove a prescription contraceptive, if covered for other prescription medication.
Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage? No
Has a court considered the constitutionality of this law? No.
What is the legal basis for the health-insurance plan requirement? In 2009, the Wisconsin Assembly approved a provision in the state budget which explicitly requires all insurance plans that cover prescription medication to include equitable coverage for contraception.
What is the legal basis for the employer requirement? In 2004, a state agency, the Equal Rights Division, ruled that an employer's failure to cover contraceptives constitutes sex discrimination in violation of the Fair Labor Employment Act. In addition, Wisconsin Attorney General Peg Lautenschlager issued a formal, nonbinding opinion that Wisconsin law prohibits employers and state colleges and universities from excluding prescription contraceptives from health-benefit plans if the plans provide coverage for other prescription medication.
Do all employers have to follow the Equal Rights Division's ruling? Yes. All Wisconsin employers must comply with decisions mandating coverage of contraception. The Equal Rights Division enforces the ruling by employee complaints.
2009-2010 Wis. Legis. Serv. Act 28 (2009 A.B. 75) (WEST); Wis. Op. Att'y Gen. 1-04 (Aug. 16, 2004); Anderson v. Green Bay, ERD No. CR200300616 (Wis. Dep't Workforce Dev., Equal Rights Div., Aug. 23, 2004).
Emergency Contraception
EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS
Wisconsin law ensures that sexual assault victims receive access to emergency contraception (EC) in hospital emergency rooms. As part of the minimum standards for the examination and treatment of a sexual assault victim, hospitals must provide a sexual assault victim with medically and factually accurate written and oral information about EC, offer her EC, and dispense EC to her upon request.
Wis. Stat. Ann. §§ 50.375, 50.389 (Enacted 2008).
Guaranteed Access to Prescriptions
Wisconsin law guarantees that women's birth-control prescriptions will be filled. Wisconsin law specifies that a pharmacist may refuse to fill a prescription or dispense a medication only under certain circumstances. Permissible reasons for refusal include questions concerning the legitimacy or appropriateness of any prescription presented, or errors or inadequate instructions in the prescription.
Wis. Stat. Ann. AA 450.095 (Enacted 2009).
Low-Income Women's Access to Family Planning
Wisconsin provides increased access to reproductive health care services through a Section 1115 family planning waiver. The waiver allows the state to cover family planning services for all women ages 15 to 44 with incomes at or below 200% of the federal poverty level who are not otherwise eligible for the state's expanded Medicaid and SCHIP program, known as BadgerCare Plus.
Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services. Covered services include: family planning office visits; limited laboratory services; sterilization; contraceptives devices; pharmaceutical supplies; treatment of sexually transmitted diseases; and other services.
The waiver will expire on Dec. 31, 2010.
Wis. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., April 6, 2006 at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=dual,%20data&filterValue=Wisconsin&filterByDID=2&sortByDID=2&sortOrder=ascending&itemID=CMS047939&intNumPerPage=10 (last visited Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices
Protection Against Clinic Violence
Any person who intentionally enters a medical facility without the consent of a person lawfully upon the premises under circumstances tending to provoke a breach of the peace is guilty of a misdemeanor. Wis. Stat. Ann. § 943.145 (Enacted 1985).
A court held that this law is constitutional. State v. Migliorino, 442 N.W.2d 36 (Wis. 1989), cert. denied, 493 U.S. 1004 (1989).
OTHER LAWS
Post-Viability Abortion Restriction
No abortion may be performed after viability unless necessary to preserve the woman's life or health. The physician must use the available abortion method most likely to preserve the life and health of the fetus unless that method would increase the risk to the woman. Wis. Stat. Ann. § 940.15 (Enacted 1985; Last Amended 2001).
NARAL Pro-Choice America supports the legal framework established in Roe v. Wade and does not oppose restrictions on post-viability abortions, such as Wisconsin's, that contain adequate exceptions to protect the life and health of the woman.
