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Abortion Bans

Wisconsin has not fully repealed its unconstitutional and unenforceable pre-Roe abortion ban.  The ban provides that any person, except a woman upon herself, who provides an abortion not necessary to preserve the woman's life, is guilty of a felony.  Wis. Stat. Ann. § 940.04 (Enacted 1956; Last Amended 2001).    

Prior to the U.S. Supreme Court decision in Roe, a court held that certain provisions of § 940.04 were unconstitutional and enjoined their enforcement.  The provisions, including fining and imprisoning a woman who either consents to an abortion or performs an abortion on herself, were found to be a violation of a woman's right to privacy.  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).  These provisions have since been repealed.  2011 Wis. Act 217.  


Wisconsin's unconstitutional and unenforceable ban outlaws abortion procedures as early as 12 weeks.  Wis. Stat. Ann. §§ 895.038 (Enacted 1998), 940.16 (Enacted 1998).

A court held that Wisconsin's ban is unconstitutional because it has no 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 that has no 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

Wisconsin's unconstitutional and unenforceable law makes any abortion procedure that falls within a broad definition a felony, unless 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 certain second-trimester abortion procedures and has no 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.

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