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State Laws

Wisconsin


Political Information

Executive (Governor)

Pro-choice

Senate

Anti-choice

House

Anti-choice

Abortion-Care Policies

Abortion Providers

Abortion Providers: Restrictions

Wisconsin imposes extra restrictions on abortion providers, despite the fact that all health-care providers already must comply with a variety of federal and state regulations governing health, safety, building and fire codes, and zoning requirements.

Restrictions on Where Abortion Services May Be Provided

Wisconsin places medically unnecessary restrictions on where abortion services may be provided.

Physicians may only provide first-trimester abortion services within 30 minutes traveling time of a hospital. Wis. Admin. Code § Med. 11.04(g). No exception is made for rural areas or for medication abortion.

Every physician providing abortion services must have admitting privileges at a hospital within 30 miles of the abortion facility. Wis. Stat. Ann. §253.095 (Enacted 2013).  Subsequently, the U.S. District Court for the Western District of Wisconsin issued a temporary restraining order enjoining the admitting privileges requirement. Planned Parenthood of Wisconsin v. Van Hollen.  —F.Supp.2d—, 2013 (W.D. Wis., 2013). The state appealed to the Seventh Circuit Court of Appeals, which upheld the ruling.  Planned Parenthood of Wisconsin v. Van Hollen 738 F.3d 768. C.A.7 (Wis.), 2013, 2015.  The Supreme Court had previously denied cert in the case, so the law is not in effect. Planned Parenthood of Wisconsin v. Van Hollen 134 S.Ct.2841, U.S., 2014. The state had requested cert a second time — asking the Supreme Court to examine the Seventh Circuit opinion — but the day following the Supreme Court’s decision in a similar TRAP case out of Texas (Whole Woman’s Health v. Hellerstedt), the court once again denied cert—resulting in the law’s permanent injunction. Planned Parenthood v. van Hollen, 94 F.Supp.3d 949, (W.D. Wisconsin. 2015), petition for cert. denied (S. Ct. 2016).

Wisconsin has an unconstitutional requirement that all abortion services after the first trimester be provided 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).

Restrictions on Who May Provide Abortion Services

Wisconsin prohibits certain qualified health-care professionals from providing abortion services.

Only a physician may provide abortion care. Wis. Stat. Ann. § 940.04(5)(a) (Enacted 1956; Last Amended 2003); Wis. Admin. Code § Med. 11.03.


Abortion Rights

Post-Viability Ban

No abortion may be provided after viability unless necessary to preserve the woman’s life or health.  The physician must use the available method most likely to preserve the life and health of the fetus unless it 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. Regarding the right to abortion in the third trimester, Roe allows for restrictions on post-viability abortion so long as they contain adequate exceptions to protect the woman’s life and health. However, many states have bans with inadequate exceptions, no exceptions at all, or define viability as occurring at a particular point in pregnancy. A state may not prohibit abortion prior to viability, which is that point at which a fetus is capable of "meaningful life" outside a woman’s body. Roe v. Wade, 410 U.S. 113, 163 (1973). Because viability is a point that varies with each pregnancy, states may not declare that it occurs at a particular gestational age. NARAL Pro-Choice America does not oppose restrictions on post-viability abortion, such as Wisconsin’s, that contain adequate exceptions to protect the woman’s life and health.


Abortion Bans Throughout Pregnancy: Procedure Ban

Wisconsin has an unconstitutional and unenforceable ban that outlaws abortion procedures as early as 12 weeks.  Wisconsin’s 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).

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 http://www.doj.state.wi.us/ag/opinions/2007_05_31Huebsch-Fitzgerald.pdf.

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.


Abortion Bans Throughout Pregnancy: Ban by Week

Wisconsin outlaws abortion after 20 weeks with no exception for when pregnancy is a result of rape or incest, for cases of fetal anomaly, or when a woman’s health is at risk.  The law makes abortion after 20 weeks a criminal act, unless necessary to prevent a substantial permanent impairment of the life or physical health of the woman. Wis. Stat. Ann. §253.107 (Enacted 2015).


Near-Total Abortion Ban

Wisconsin has not repealed its pre-Roe abortion ban, which is unconstitutional and unenforceable.                   

                                                     

The ban provides that any person who "intentionally destroys the life of an unborn child" is guilty of a Class H felony, which carries a prison term of up to six years in prison and a fine of up to $10,000. A woman who "intentionally destroys the life of her unborn child" or consents for another person to do so may be imprisoned and/or fined. A person who provides an abortion of a "quick child" which is defined as occuring when the fetus moves in the womb, can be found guilty of a Class E felony, which carries up to 15 years in prison, up to $50,000 in fines, or both. The only exception is to save the life of the woman. W.S.A. 940.04, current through 2017 Act 367.  


Biased Counseling

Biased Counseling

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; (9) state that fetal ultrasound imaging and auscultation of fetal heart-tone services are available and describe the services; and (10) include information on services available for survivors of domestic abuse. Wis. Stat. Ann. § 253.10 (Enacted 1985; Amended 2012).  

A court held that this law is constitutional.  Karlin v. Foust, 188 F.3d 446 (7th Cir. 1999).


Mandatory Delays

Mandatory Delay

Wisconsin requires a woman seeking an abortion to wait at least 24 hours between the time she receives biased-counseling materials and when she can get the abortion procedure. Wis. Stat. Ann. § 253.10 (Enacted 1985; Amended 2012).  


Insurance Coverage for Abortion

Prohibits Abortion Coverage in the Insurance Exchange

Does Wisconsin expressly prohibit plans in its state exchange from covering abortion services?

Yes.  Health-insurance policies offered in the state health-insurance exchange may not include abortion coverage, with exceptions to save a woman’s life or in limited circumstances to preserve a woman’s physical health, or if the pregnancy is the result of rape or incest reported to law enforcement.  Wis. Stat. Ann § 632.8985 (Enacted 2012).


Prohibits Abortion Coverage for Public Employees

Does Wisconsin expressly prohibit insurance plans for public employees from covering abortion services?

Yes.  Health-insurance policies provided to state employees may not include abortion coverage, with exceptions only to save a woman’s life or prevent grave long-lasting physical health damage, rape or incest.  WI Stat § 40.02, 40.03, 40.56 (Enacted 2018).


Abortion Coverage for Low-Income People

Restricts 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).


Young People & Abortion

Parental Consent

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 sex or sex with a "caregiver."  The physician must place the statement in her medical record and report the sexual assault or sex.

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 that necessitates an immediate abortion to preserve the woman’s 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 2009), 253.10 (Enacted 1985; Last Amended 2009).


Family-Planning Policies

Insurance Coverage & Contraception

Supports Insurance Coverage of Contraception

Wisconsin law requires health-insurance plans that cover prescription medication and employers that provide insurance coverage for prescription medication to provide the same 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.

Wis. Stat. Ann. §§ 632.895 (17) (Enacted 2009); 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).


Contraception Coverage for Low-Income People

Supports Low-Income Women’s Access to Contraception

Wisconsin provides increased access to reproductive-health-care services through a State Plan Amendment (SPA) to its Medicaid program.  The SPA allows the state to cover family-planning services for women and men of childbearing age with family incomes at or below 306 percent of the federal poverty level who are not currently enrolled in Medicaid and do not have any other health insurance.  Additionally, enrollees must be (1) U.S. citizens or persons who meet the state’s defined immigration requirements and (2) Wisconsin residents.

Beneficiaries of family-planning coverage available through the SPA are not required to pay premiums or co-payments for covered services.  Covered services include: family-planning office and pharmacy visits; pap tests; limited laboratory services; sterilization; contraceptives services and supplies; STI testing and treatment; and other services.

Wisconsin State Plan Amendment, No. WI-10-009, at http://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/WI/WI-10-009-Ltr.pdf; http://www.medicaid.gov/State-resource-center/Medicaid-State-Plan-Amendments/Downloads/WI/WI-10-009-Att.pdf.


Emergency Contraception

EC in the ER

Wisconsin law ensures that sexual-assault survivors 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 survivor, hospitals must provide a woman with medically and factually accurate written and oral information about EC, offer her EC, and provide EC upon request. Wis. Stat. Ann. §§ 50.375, 50.377 (Enacted 2008).


Other Important Issues

Clinic Protections

Clinic Protections

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).


Refusals & Guarantees

Refusals of Medical Care

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? Allows physicians and other persons associated with, employed by, or on the staff of a hospital who object in writing on moral or religious grounds to refuse to participate in abortion services. The refusal may not be a basis for damages, discrimination in employment or education, disciplinary action, or other recriminatory action.

Allows hospitals to refuse to admit any woman or allow the use of its facilities for the purpose of abortion services. The refusal of a hospital on moral or religious grounds to permit or provide abortion care 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 care 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 2009), 448.03(5) (Enacted 1976; Last Amended 2009).

FAMILY-PLANNING REFUSAL CLAUSE

Wisconsin allows certain individuals to refuse to provide family-planning services.

To whom does the refusal clause apply? State employees.

What does the refusal clause allow? Allows state employees who object based on personal beliefs to refuse to offer family-planning services. The refusal 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 2011).

STERILIZATION REFUSAL CLAUSE

Wisconsin allows certain individuals or entities to refuse to provide or participate in sterilization 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? Allows physicians and other persons associated with, employed by, or on the staff of a hospital who object in writing on moral or religious grounds to refuse to participate in sterilization services. The refusal may not be a basis for damages, discrimination in employment or education, disciplinary action, or other recriminatory action.

Allows hospitals to refuse to admit any woman or allow the use of its facilities for the purpose of performing sterilization services. The refusal of a hospital on moral or religious grounds to permit or provide sterilization care 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).


Guarantees 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. §§ 450.095 (Enacted 2009).


Counseling & Referral Bans

Counseling & Referral Ban

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).

Women’s health funds cannot be distributed to an entity that provides abortion care or referrals or to an affiliate of such an entity. Wis. Stat. § 253.07 (2018).  


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