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Wisconsin has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.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  Wisconsin later repealed the provision allowing prosecution of a woman for having an abortion.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.