SB923: Bill Text

SB923,4 Section 4 . 253.108 of the statutes is created to read:

SB923,4,7 253.108 Abortions when fetal heartbeat detected. (1) Definitions. In this section:

SB923,4,8 (a) “Abortion" has the meaning given in s. 253.10 (2) (a).

SB923,4,17 (b) “Medical emergency" means a condition, in a physician's reasonable medical judgment, that so complicates the medical condition of a pregnant woman as to necessitate immediate medical intervention to avert her death or for which a 24-hour delay will create serious risk of substantial and irreversible physical impairment of one or more of the woman's major bodily functions. “Medical emergency” does not include a psychological or emotional condition or any condition based on a claim or diagnosis that the woman will engage in conduct that she intends to result in her death or in substantial and irreversible physical impairment of a major bodily function.

SB923,5,2 (2) Detection of fetal heartbeat required. (a) Except when a medical emergency exists, no person may perform or induce an abortion, or attempt to perform or induce an abortion, unless the person performing or inducing the abortion has first determined, or has relied on a determination made as to, whether the woman's unborn child has a detectable fetal heartbeat. In attempting to detect a fetal heartbeat, the person making the determination shall use the most effective, in the person's reasonable medical judgment, means of detecting the heartbeat based on the probable postfertilization age of the unborn child and the condition of the woman and her pregnancy.

SB923,5,5 (b) A physician who makes or relies on a determination of whether the woman's unborn child has a detectable fetal heartbeat under par. (a) shall record all of the following in the woman's medical record:

SB923,5,9 1. The probable postfertilization age of the unborn child, as defined in s. 253.107 (1) (c), and the method of determining the probable postfertilization age or, if the probable postfertilization age of the unborn child was not determined, the nature of the medical emergency, as defined in s. 253.10 (2) (d).

SB923,5,11 2. The means used to detect the fetal heartbeat and the date, time, and results of the use of those means.

SB923,5,15 (3) Prohibiting abortion of unborn child with detectable heartbeat. Except when a medical emergency exists, no person may perform or induce or attempt to perform or induce an abortion on a woman if a fetal heartbeat is detected under sub. (2) for the unborn child.

SB923,5,22 (4) Medical emergencies. No physician who performs a medical intervention designed or intended to prevent the death of a pregnant woman is considered to have violated sub. (2) or (3), except that the physician shall make reasonable medical efforts under the circumstances to preserve both the life of the woman and the life of the unborn child in a manner consistent with conventional medical practice. Medical treatment provided to the woman by a physician that results in accidental or unintentional injury or death to the unborn child is not a violation of this section.

SB923,5,24 (5) Penalty. No penalty may be assessed against a woman upon whom an abortion is performed or induced or attempted to be performed or induced.

SB923,6,4 (6) Civil remedies; injunctions; prosecutions. (a) Any of the following may bring a claim for damages, including damages for personal injury and emotional and psychological distress, against a person who performs, or attempts to perform, an abortion in violation of sub. (2), (3), or (4):

SB923,6,6 1. The woman on whom an abortion is performed or induced or attempted to be performed or induced.

SB923,6,10 2. The father of the aborted unborn child or the unborn child that is attempted to be aborted, unless the pregnancy was the result of sexual assault in violation of s. 940.225, 944.06, 948.02, 948.025, 948.06, 948.085, or 948.09 and the violation was committed by the father.

SB923,6,12 3. Any grandparent of the aborted unborn child or the unborn child that is attempted to be aborted.

SB923,6,15 4. Any family member of the aborted unborn child or the unborn child that is attempted to be aborted who is related by blood, marriage, or adoption within the 3rd degree of kinship as computed under s. 990.001 (16).

SB923,6,18 5. Any other person, other than an officer or employee of a state or local governmental entity acting in an official capacity in this state, not included in subds. 1. to 4.

SB923,6,21 (b) 1. A person who prevails in an action shall recover damages of not less than $10,000 for each abortion that is performed or induced or attempted to be performed or induced in violation of sub. (2), (3), or (4).

SB923,6,24 2. Notwithstanding s. 814.04 (1), a person who recovers damages under par. (a) may also recover reasonable court costs and attorney fees incurred in connection with the action.

SB923,7,4 3. If a defendant prevails in an action under par. (a) and the court finds the action was frivolous or brought in bad faith, notwithstanding s. 814.04 (1), the defendant may recover reasonable attorney fees incurred in connection with defending the action.

SB923,7,6 (c) No penalty may be assessed against a woman upon whom an abortion is performed or induced or attempted to be performed or induced.

SB923,7,7 (d) A contract is not a defense to an action under this subsection.

SB923,7,9 (e) Nothing in this subsection limits the common law rights of a person that are not in conflict with sub. (2) or (3).

SB923,7,22 (7) Confidentiality in court proceedings. (a) In every proceeding brought under this section, the court, upon motion or of its own accord, shall rule whether the identity of any woman upon whom an abortion was performed or induced or attempted to be performed or induced shall be kept confidential unless the woman waives confidentiality. If the court determines that a woman's identity should be kept confidential, the court shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the woman's identity from public disclosure. If the court issues an order to keep a woman's identity confidential, the court shall provide written findings explaining why the woman's identity should be kept confidential, why the order is essential to that end, how the order is narrowly tailored to its purpose, and why no reasonable less restrictive alternative exists.

SB923,8,2 (b) Any person who brings an action under this section shall do so under a pseudonym unless the person obtains the written consent of the woman upon whom an abortion was performed or induced, or attempted to be performed or induced, in violation of sub. (2) or (3).

SB923,8,4 (c) This section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

SB923,8,7 (8) Construction. Nothing in this section may be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.

SB923,5 Section 5. 448.02 (3) (a) of the statutes is amended to read:

SB923,9,2 448.02 (3) (a) The board shall investigate allegations of unprofessional conduct and negligence in treatment by persons holding a license or certificate granted by the board. An allegation that a physician has violated s. 253.10 (3), 253.108 (2) or (3), 448.30 or 450.13 (2) or has failed to mail or present a medical certification required under s. 69.18 (2) within 21 days after the pronouncement of death of the person who is the subject of the required certificate or that a physician has failed at least 6 times within a 6-month period to mail or present a medical certificate required under s. 69.18 (2) within 6 days after the pronouncement of death of the person who is the subject of the required certificate is an allegation of unprofessional conduct. Information contained in reports filed with the board under s. 49.45 (2) (a) 12r., 50.36 (3) (b), 609.17 or 632.715, or under 42 CFR 1001.2005, shall be investigated by the board. Information contained in a report filed with the board under s. 655.045 (1), as created by 1985 Wisconsin Act 29, which is not a finding of negligence or in a report filed with the board under s. 50.36 (3) (c) may, within the discretion of the board, be used as the basis of an investigation of a person named in the report. The board may require a person holding a license or certificate to undergo and may consider the results of one or more physical, mental or professional competency examinations if the board believes that the results of any such examinations may be useful to the board in conducting its investigation.

SB923,6 Section 6 . Nonstatutory provisions.

SB923,9,5 (1) Legislative findings. The legislature of the State of Wisconsin finds and declares all of the following:

SB923,9,7 (a) During the embryonic stage of pregnancy, the heart of an unborn child begins to beat.

SB923,9,10 (b) Less than 5 percent of all natural pregnancies end in spontaneous miscarriage after detection of cardiac activity, which makes fetal heartbeat a key medical indicator that an unborn child is likely to achieve the capacity for a live birth.

SB923,9,12 (c) The observation of a heartbeat in an unborn child when a heartbeat has been detected is an important component of full informed consent.

SB923,9,14 (d) The presence of a heartbeat in an unborn child may be a material consideration to many pregnant women contemplating abortion.

SB923,9,18 (e) The woman's decision whether to abort “is an important, and often a stressful one, and it is desirable and imperative that it be made with full knowledge of its nature and consequences.” Planned Parenthood v. Danforth, 428 U.S. 52, 67 (1976).

SB923,9,25 (f) “In attempting to ensure that a woman apprehend the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed. If the information the State requires to be made available to the woman is truthful and not misleading, the requirement may be permissible.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 882 (1992).

SB923,10,5 (g) The state asserts a compelling state interest in protecting the lives of unborn children from the time at which a heartbeat is detectable. This interest is asserted in addition to, not in replacement of, the compelling state interest in the viable unborn child, which was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey.

SB923,7 Section 7. Effective date.

SB923,10,8 (1) This act takes effect on the first day of the 3rd month beginning after publication.

SB923,10,9 (End)