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LRB-2499/1
TJD:jld
2015 - 2016 LEGISLATURE
May 22, 2015 - Introduced by Senators Lazich, S. Fitzgerald, Farrow, Gudex,
LeMahieu, Moulton, Nass, Roth, Stroebel, Vukmir and Wanggaard,
cosponsored by Representatives Kremer, Ballweg, Sanfelippo, Allen, Craig,
Edming, Gannon, Horlacher, Hutton, Kapenga, Katsma, Kleefisch,
Kuglitsch, Kulp, Murphy, Petersen, Quinn, Rohrkaste, Skowronski, Tittl
and Vorpagel. Referred to Committee on Health and Human Services.
SB179,1,6 1An Act to amend 253.10 (3) (c) 1. b. and 253.10 (3) (d) 1.; and to create 69.186
2(1) (hf), 69.186 (1) (k) and (L), 253.10 (2) (dr), 253.10 (3) (c) 2. em. and 253.107
3of the statutes; relating to: requiring a determination of probable
4postfertilization age of an unborn child before abortion, prohibiting abortion of
5an unborn child considered capable of experiencing pain, informed consent,
6abortion reporting, and providing a criminal penalty.
Analysis by the Legislative Reference Bureau
This bill prohibits the performance of an abortion, except in a medical
emergency, unless the physician performing or inducing the abortion has made a
determination of the probable postfertilization age of the unborn child or has relied
upon another physician's determination of postfertilization age. The bill prohibits
any person from performing or inducing, or attempting to perform or induce, an
abortion when the unborn child is considered to be capable of experiencing pain,
unless the woman is undergoing a medical emergency. Under the bill, the unborn
child is capable of experiencing pain if the probable postfertilization age of the
unborn child is 20 or more weeks. When the unborn child is considered capable of
experiencing pain and the pregnant woman is undergoing a medical emergency, the
bill requires the physician to terminate the pregnancy in the manner that, in
reasonable medical judgment, provides the best opportunity for the unborn child to
survive. The bill allows the woman on whom the abortion was performed or

attempted, and the father of the unborn child, unless the pregnancy is the result of
sexual assault or incest, to bring a claim for damages against a person who violates
these limitations and requirements. A prosecuting attorney may also bring an action
for injunctive relief for intentional or reckless violations of the limitations and
requirements. Any person who violates the prohibition against performing,
inducing, or attempting to perform or induce an abortion when the unborn child is
capable of experiencing pain is guilty of a felony subject to a fine not to exceed
$10,000, imprisonment not to exceed three years and six months, or both.
Under current law, annually, each hospital, clinic, or other facility in which an
induced abortion is performed must file with DHS a report for each induced abortion
performed in the calendar year. The report must contain for each patient the state,
and county if Wisconsin, of residence; patient number; race; age; marital status;
month and year in which the abortion was performed; education; number of weeks
since patient's last menstrual period; whether the abortion was chemically or
surgically induced or surgically induced following a failed chemical abortion; and
any resulting complications. If the patient is a minor, the report must contain
whether consent for the abortion was provided and by whom; and, if consent was not
provided, on which basis the abortion was performed. Under current law, DHS is
required to collect the reported information in a manner that ensures anonymity of
the patient who obtained the abortion, the health care provider who performed the
abortion, and the facility in which the abortion was performed. Under current law,
DHS is required to publish annual demographic summaries of the reported
information except what reveals the identity of a patient, provider, or facility.
The bill requires the hospital, clinic, or other facility to report the probable
postfertilization age of the unborn child and whether ultrasound was used to assist
in that determination of postfertilization age; or, if the probable postfertilization age
of the unborn child was not determined, the nature of the medical emergency. If the
unborn child is considered capable of experiencing pain, the bill requires reporting
of the nature of the pregnant woman's medical emergency and a statement of
whether the method of abortion used was one that provided the best opportunity for
the unborn child's survival.
Under current law, a woman upon whom an abortion is to be performed or
induced must give voluntary and informed written consent to an abortion. Except
in a medical emergency, a woman's consent to an abortion is considered informed
only if, at least 24 hours before the abortion is performed or induced, the physician
or an assistant has, in person, orally provided the woman with certain information
and given to the woman certain written materials. If the pregnancy is the result of
sexual assault or incest, the 24-hour period, but not the provision of information,
may be waived or reduced under certain circumstances. In addition to the current
requirement to inform the woman, orally and in writing, of the probable gestational
age, the bill requires that the woman be informed, orally and in writing, of the
probable postfertilization age of the unborn child and the numerical odds of survival
for an unborn child delivered at that probable postfertilization age. The bill also
requires that the woman be orally informed of and provided written materials on the
availability of perinatal hospice.

For further information see the state fiscal estimate, which will be printed as
an appendix to this bill.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
SB179,1 1Section 1. 69.186 (1) (hf) of the statutes is created to read:
SB179,3,62 69.186 (1) (hf) The probable postfertilization age of the unborn child, as defined
3in s. 253.107 (1) (c), and whether an ultrasound was used to assist in making the
4determination of postfertilization age of the unborn child, or, if the probable
5postfertilization age of the unborn child was not determined, the nature of the
6medical emergency, as defined in s. 253.10 (2) (d).
SB179,2 7Section 2. 69.186 (1) (k) and (L) of the statutes are created to read:
SB179,3,108 69.186 (1) (k) If the unborn child is considered to be capable of experiencing
9pain under s. 253.107 (3) (a), the nature of the medical emergency, as defined in s.
10253.10 (2) (d), that the pregnant woman had.
SB179,3,1711 (L) If the unborn child is considered to be capable of experiencing pain under
12s. 253.107 (3) (a), a statement whether the method of abortion used was one that, in
13reasonable medical judgment, provided the best opportunity for the unborn child to
14survive or, if such a method was not used, the basis of the determination that
15termination of the pregnancy in that manner posed a greater risk either of the death
16of the pregnant woman or of the substantial and irreversible physical impairment
17of a major bodily function of the woman than other available methods.
SB179,3 18Section 3. 253.10 (2) (dr) of the statutes is created to read:
SB179,4,319 253.10 (2) (dr) "Perinatal hospice" means comprehensive support that includes
20support from the time of a terminal diagnosis of an unborn child through the birth
21and death of the child and through the postpartum period and may include the

1supportive care of maternal-fetal medical specialists, obstetricians, neonatologists,
2anesthesia specialists, specialty nurses, psychiatrists, psychologists, mental health
3professionals, clergy, social workers, and other professionals.
SB179,4 4Section 4. 253.10 (3) (c) 1. b. of the statutes is amended to read:
SB179,4,105 253.10 (3) (c) 1. b. The probable gestational age of the unborn child, the
6probable postfertilization age of the unborn child, as defined in s. 253.107 (1) (c), and
7the numerical odds of survival for an unborn child delivered at that probable
8postfertilization age,
at the time that the information is provided. The physician or
9other qualified physician shall also provide this information to the woman in writing
10at this time.
SB179,5 11Section 5. 253.10 (3) (c) 2. em. of the statutes is created to read:
SB179,4,1312 253.10 (3) (c) 2. em. That the printed materials described in par. (d) contain
13information on the availability of perinatal hospice.
SB179,6 14Section 6. 253.10 (3) (d) 1. of the statutes is amended to read:
SB179,5,2315 253.10 (3) (d) 1. Geographically indexed materials that are designed to inform
16a woman about public and private agencies, including adoption agencies, and
17services that are available to provide information on family planning, as defined in
18s. 253.07 (1) (a), including natural family planning information, to provide
19ultrasound imaging services, to assist her if she has received a diagnosis that her
20unborn child has a disability or if her pregnancy is the result of sexual assault or
21incest and to assist her through pregnancy, upon childbirth and while the child is
22dependent. The materials shall include a comprehensive list of the agencies
23available, a description of the services that they offer and a description of the manner
24in which they may be contacted, including telephone numbers and addresses, or, at
25the option of the department, the materials shall include a toll-free, 24-hour

1telephone number that may be called to obtain an oral listing of available agencies
2and services in the locality of the caller and a description of the services that the
3agencies offer and the manner in which they may be contacted. The materials shall
4provide information on the availability of governmentally funded programs that
5serve pregnant women and children. Services identified for the woman shall include
6medical assistance for pregnant women and children under s. 49.47 (4) (am) and
749.471, the availability of family or medical leave under s. 103.10, the Wisconsin
8works program under ss. 49.141 to 49.161, child care services, child support laws and
9programs and the credit for expenses for household and dependent care and services
10necessary for gainful employment under section 21 of the Internal Revenue Code.
11The materials shall state that it is unlawful to perform an abortion for which consent
12has been coerced, that any physician who performs or induces an abortion without
13obtaining the woman's voluntary and informed consent is liable to her for damages
14in a civil action and is subject to a civil penalty, that the father of a child is liable for
15assistance in the support of the child, even in instances in which the father has
16offered to pay for an abortion, and that adoptive parents may pay the costs of
17prenatal care, childbirth and neonatal care. The materials shall include
18information, for a woman whose pregnancy is the result of sexual assault or incest,
19on legal protections available to the woman and her child if she wishes to oppose
20establishment of paternity or to terminate the father's parental rights. The
21materials shall include information on services in the state that are available for
22victims or individuals at risk of domestic abuse. The materials shall include
23information on the availability of perinatal hospice.
SB179,7 24Section 7. 253.107 of the statutes is created to read:
SB179,6,2
1253.107 Probable postfertilization age; later-term abortions. (1)
2Definitions. In this section:
SB179,6,33 (a) "Abortion" has the meaning given in s. 253.10 (2) (a).
SB179,6,44 (b) "Medical emergency" has the meaning given in s. 253.10 (2) (d).
SB179,6,65 (c) "Probable postfertilization age of the unborn child" means the number of
6weeks that have elapsed from the probable time of fertilization of a woman's ovum.
SB179,6,11 7(2) Probable postfertilization age. Except in the case of a medical emergency,
8no physician may perform or induce an abortion, or attempt to perform or induce an
9abortion, unless the physician performing or inducing it has first made a
10determination of the probable postfertilization age of the unborn child or relied upon
11such a determination made by another physician.
SB179,6,17 12(3) Protection of unborn child capable of feeling pain from abortions. (a)
13No person shall perform or induce or attempt to perform or induce an abortion upon
14a woman when the unborn child is considered capable of experiencing pain unless
15the woman is undergoing a medical emergency. For purposes of this subsection, an
16unborn child is considered to be capable of experiencing pain if the probable
17postfertilization age of the unborn child is 20 or more weeks.
SB179,6,2118 (b) When the unborn child is considered capable of experiencing pain and the
19pregnant woman is undergoing a medical emergency, the physician shall terminate
20the pregnancy in the manner that, in reasonable medical judgment, provides the best
21opportunity for the unborn child to survive.
SB179,6,24 22(4) Penalty. Any person who violates sub. (3) (a) is guilty of a Class I felony.
23No penalty may be assessed against a woman upon whom an abortion is performed
24or induced or attempted to be performed or induced.
SB179,7,4
1(5) Civil remedies; injunctions. (a) Any of the following individuals may bring
2a claim for damages, including damages for personal injury and emotional and
3psychological distress, against a person who performs, or attempts to perform, an
4abortion in violation of this section:
SB179,7,65 1. A woman on whom an abortion is performed or induced or attempted to be
6performed or induced.
SB179,7,97 2. The father of the aborted unborn child or the unborn child that is attempted
8to be aborted, unless the pregnancy is the result of sexual assault under s. 940.225
9(1), (2), or (3) or incest under s. 948.06 (1) or (1m).
SB179,7,1210 (b) A person who has been awarded damages under par. (a) shall, in addition
11to any damages awarded under par. (a), be entitled to punitive damages for a
12violation that satisfies a standard under s. 895.043 (3).
SB179,7,1513 (c) 1. Notwithstanding s. 814.04 (1), a person who recovers damages under par.
14(a) or (b) may also recover reasonable attorney fees incurred in connection with the
15action.
SB179,7,1916 2. If a defendant prevails in an action under par. (a) and the court finds the
17action was frivolous or brought in bad faith, notwithstanding s. 814.04 (1), the
18defendant may recover reasonable attorney fees incurred in connection with
19defending the action.
SB179,7,2020 (d) A contract is not a defense to an action under this subsection.
SB179,7,2221 (e) Nothing in this subsection limits the common law rights of a person that are
22not in conflict with sub. (2) or (3).
SB179,7,2523 (f) A prosecuting attorney with appropriate jurisdiction may bring an action for
24injunctive relief against a person who has intentionally or recklessly violated this
25section.
SB179,8,13
1(6) Confidentiality in court proceedings. (a) In every proceeding brought
2under this section, the court, upon motion or sua sponte, shall rule whether the
3identity of any woman upon whom an abortion was performed or induced or
4attempted to be performed or induced shall be kept confidential unless the woman
5waives confidentiality. If the court determines that a woman's identity should be
6kept confidential, the court shall issue orders to the parties, witnesses, and counsel
7and shall direct the sealing of the record and exclusion of individuals from
8courtrooms or hearing rooms to the extent necessary to safeguard the woman's
9identity from public disclosure. If the court issues an order to keep a woman's
10identity confidential, the court shall provide written findings explaining why the
11woman's identity should be kept confidential, why the order is essential to that end,
12how the order is narrowly tailored to its purpose, and why no reasonable less
13restrictive alternative exists.
SB179,8,1714 (b) Any person, except for a public official, who brings an action under this
15section shall do so under a pseudonym unless the person obtains the written consent
16of the woman upon whom an abortion was performed or induced, or attempted to be
17performed or induced, in violation of this section.
SB179,8,1918 (c) This section may not be construed to allow the identity of a plaintiff or a
19witness to be concealed from the defendant.
SB179,8,22 20(7) Construction. Nothing in this section may be construed as creating or
21recognizing a right to abortion or as making lawful an abortion that is otherwise
22unlawful.
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