Chapter 253

253.095(3) (3) Penalty. Any person who violates this section shall be required to forfeit not less than $1,000 nor more than $10,000. No penalty may be assessed against the woman upon whom the abortion is performed or induced or attempted to be performed or induced.

253.095(4) (4) Civil remedies.

253.095(4)(a) (a) Any of the following individuals 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 this section:

253.095(4)(a)1. 1. A woman on whom an abortion is performed or attempted.

253.095(4)(a)2. 2. The father of the aborted unborn child or the unborn child that is attempted to be aborted.

253.095(4)(a)3. 3. Any grandparent of the aborted unborn child or the child that is attempted to be aborted.

253.095(4)(b) (b) A person who has been awarded damages under par. (a) shall, in addition to any damages awarded under par. (a), be entitled to not less than $1,000 nor more than $10,000 in punitive damages for a violation that satisfies a standard under s. 895.043 (3).

253.095(4)(c) (c) A conviction under sub. (3) is not a condition precedent to bringing an action, obtaining a judgment, or collecting the judgment under this subsection.

253.095(4)(d) (d) Notwithstanding s. 814.04 (1), a person who recovers damages under par. (a) or (b) may also recover reasonable attorney fees incurred in connection with the action.

253.095(4)(e) (e) A contract is not a defense to an action under this subsection.

253.095(4)(f) (f) Nothing in this subsection limits the common law rights of a person that are not in conflict with sub. (2).

253.095(5) (5) Confidentiality in court proceedings.

253.095(5)(a) (a) In every proceeding brought under this section, the court, upon motion or sua sponte, 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.

253.095(5)(b) (b) Any person, except for a public official, 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 this section.

253.095(5)(c) (c) This section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

253.095 History History: 2013 a. 37.

253.095 Note NOTE: In Planned Parenthood of Wisconsin, Inc. v. Van Hollen, Case No. 13-cv-465-wmc, 94 F. Supp. 3d 949, the U.S. District Court for the Western District of Wisconsin held that this section is unconstitutional under the 14th Amendment to the U.S. Constitution and granted a permanent injunction against the enforcement of this section. Affirmed. U.S. 7th Circuit Court of Appeals Case No. 15-1736, 806 F.3d 908 (2015). See also Whole Woman’s Health v. Hellerstedt, 579 U.S. ___, 136 S. Ct. 2292, 195 L. Ed. 2d 665 (2016); June Medical Services L.L.C. v. Russo, 591 U.S. ___, 140 S. Ct. 2103, 207 L. Ed. 2d 566 (2020).

253.10 253.10 Voluntary and informed consent for abortions.

253.10(1) (1) Legislative findings and intent.

253.10(1)(a) (a) The legislature finds that:

253.10(1)(a)1. 1. Many women now seek or are encouraged to undergo elective abortions without full knowledge of the medical and psychological risks of abortion, development of the unborn child or of alternatives to abortion. An abortion decision is often made under stressful circumstances.

253.10(1)(a)2. 2. The knowledgeable exercise of a woman’s decision to have an elective abortion depends on the extent to which the woman receives sufficient information to make a voluntary and informed choice between 2 alternatives of great consequence: carrying a child to birth or undergoing an abortion.

253.10(1)(a)3. 3. The U.S. supreme court has stated: “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.” Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 U.S. 2791, 2823 (1992).

253.10(1)(a)4. 4. It is essential to the psychological and physical well-being of a woman considering an elective abortion that she receive complete and accurate information on all options available to her in dealing with her pregnancy.

253.10(1)(a)5. 5. The vast majority of elective abortions in this state are performed in clinics that are devoted solely to providing abortions and family planning services. Women who seek elective abortions at these facilities normally do not have a prior patient-physician relationship with the physician who is to perform or induce the abortion, normally do not return to the facility for post-operative care and normally do not continue a patient-physician relationship with the physician who performed or induced the abortion. In most instances, the woman’s only actual contact with the physician occurs simultaneously with the abortion procedure, with little opportunity to receive personal counseling by the physician concerning her decision. Because of this, certain safeguards are necessary to protect a woman’s right to know.

253.10(1)(a)6. 6. A reasonable waiting period is critical to ensure that a woman has the fullest opportunity to give her voluntary and informed consent before she elects to undergo an abortion.

253.10(1)(b) (b) It is the intent of the legislature in enacting this section to further the important and compelling state interests in all of the following:

253.10(1)(b)1. 1. Protecting the life and health of the woman subject to an elective abortion and, to the extent constitutionally permissible, the life of her unborn child.

253.10(1)(b)2. 2. Fostering the development of standards of professional conduct in the practice of abortion.

253.10(1)(b)3. 3. Ensuring that prior to the performance or inducement of an elective abortion, the woman considering an elective abortion receive personal counseling by the physician and be given a full range of information regarding her pregnancy, her unborn child, the abortion, the medical and psychological risks of abortion and available alternatives to the abortion.

253.10(1)(b)4. 4. Ensuring that a woman who decides to have an elective abortion gives her voluntary and informed consent to the abortion procedure.

253.10(2) (2) Definitions. In this section:

253.10(2)(a) (a) “Abortion” means the use of an instrument, medicine, drug or other substance or device with intent to terminate the pregnancy of a woman known to be pregnant or for whom there is reason to believe that she may be pregnant and with intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.

253.10(2)(am) (am) “Abortion-inducing drug” means a drug, medicine, oral hormonal compound, mixture, or preparation, when it is prescribed to terminate the pregnancy of a woman known to be pregnant.

253.10(2)(b) (b) “Agency” means a private nonprofit organization or a county department under s. 46.215, 46.22 or 46.23.

253.10(2)(c) (c) “Disability” means a physical or mental impairment that substantially limits one or more major life activities, a record of having such an impairment or being regarded as having such an impairment. “Disability” includes any physical disability or developmental disability, as defined in s. 51.01 (5) (a).

253.10(2)(d) (d) “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 the immediate abortion of her pregnancy to avert her death or for which a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman’s major bodily functions.

253.10(2)(dr) (dr) “Perinatal hospice” means comprehensive support that includes support from the time of a terminal diagnosis of an unborn child through the birth and death of the child and through the postpartum period and may include the supportive care of maternal-fetal medical specialists, obstetricians, neonatologists, anesthesia specialists, specialty nurses, psychiatrists, psychologists, mental health professionals, clergy, social workers, and other professionals.

253.10(2)(e) (e) “Probable gestational age of the unborn child” means the number of weeks that have elapsed from the probable time of fertilization of a woman’s ovum, based on the information provided by the woman as to the time of her last menstrual period, her medical history, a physical examination performed by the physician who is to perform or induce the abortion or by any other qualified physician and any appropriate laboratory tests performed on her.

253.10(2)(f) (f) “Qualified person assisting the physician” means a social worker certified under subch. I of ch. 457, a registered nurse or a physician assistant to whom a physician who is to perform or induce an abortion has delegated the responsibility, as the physician’s agent, for providing the information required under sub. (3) (c) 2.

253.10(2)(g) (g) “Qualified physician” means a physician who by training or experience is qualified to provide the information required under sub. (3) (c) 1.

253.10(2)(h) (h) “Viability” has the meaning given in s. 940.15 (1).

253.10(3) (3) Voluntary and informed consent.

253.10(3)(a) (a) Generally. An abortion may not be performed or induced unless the woman upon whom the abortion is to be performed or induced has and, if the woman is a minor and s. 48.375 (4) (a) 2. does not apply, the individual who also gives consent under s. 48.375 (4) (a) 1. have given voluntary and informed written consent under the requirements of this section.

253.10(3)(b) (b) Voluntary consent. Consent under this section to an abortion is voluntary only if the consent is given freely and without coercion by any person. The physician who is to perform or induce the abortion shall determine whether the woman’s consent is, in fact, voluntary. Notwithstanding par. (c) 3., the physician shall make the determination by speaking to the woman in person, out of the presence of anyone other than a person working for or with the physician. If the physician has reason to suspect that the woman is in danger of being physically harmed by anyone who is coercing the woman to consent to an abortion against her will, the physician shall inform the woman of services for victims or individuals at risk of domestic abuse and provide her with private access to a telephone.

253.10(3)(c) (c) Informed consent. Except if a medical emergency exists and subject to sub. (3g), a woman’s consent to an abortion is informed only if all of the following first take place:

253.10(3)(c)1. 1. Except as provided in sub. (3m), at least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion or any other qualified physician has, in person, orally informed the woman of all of the following:

253.10(3)(c)1.a. a. Whether or not, according to the reasonable medical judgment of the physician, the woman is pregnant.

253.10(3)(c)1.b. b. The probable gestational age of the unborn child, the probable postfertilization age of the unborn child, as defined in s. 253.107 (1) (c), and the numerical odds of survival for an unborn child delivered at that probable postfertilization age, at the time that the information is provided. The physician or other qualified physician shall also provide this information to the woman in writing at this time.

253.10(3)(c)1.c. c. The particular medical risks, if any, associated with the woman’s pregnancy.

253.10(3)(c)1.d. d. The probable anatomical and physiological characteristics of the woman’s unborn child at the time the information is given.

253.10(3)(c)1.e. e. The details of the medical or surgical method that would be used in performing or inducing the abortion.

253.10(3)(c)1.f. f. The medical risks associated with the particular abortion procedure that would be used, including the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility.

253.10(3)(c)1.gm. gm. That the pregnant woman is required to obtain an ultrasound that meets the requirements under sub. (3g), if she has not already had an ultrasound that meets those requirements. The physician, or other qualified physician, shall provide to the pregnant woman a list of providers that perform an ultrasound at no cost to the woman, as described in par. (em) 1.

253.10(3)(c)1.h. h. The recommended general medical instructions for the woman to follow after an abortion to enhance her safe recovery and the name and telephone number of a physician to call if complications arise after the abortion.

253.10(3)(c)1.hm. hm. If the abortion is induced by an abortion-inducing drug, that the woman must return to the abortion facility for a follow-up visit 12 to 18 days after the use of an abortion-inducing drug to confirm the termination of the pregnancy and evaluate the woman’s medical condition.

253.10(3)(c)1.i. i. If, in the reasonable medical judgment of the physician, the woman’s unborn child has reached viability, that the physician who is to perform or induce the abortion is required to take all steps necessary under s. 940.15 to preserve and maintain the life and health of the child.

253.10(3)(c)1.j. j. Any other information that a reasonable patient would consider material and relevant to a decision of whether or not to carry a child to birth or to undergo an abortion.

253.10(3)(c)1.jm. jm. That the woman has a right to refuse to consent to an abortion, that her consent is not voluntary if anyone is coercing her to consent to an abortion against her will, and that it is unlawful for the physician to perform or induce the abortion without her voluntary consent.

253.10(3)(c)1.k. k. That the woman may withdraw her consent to have an abortion at any time before the abortion is performed or induced.

253.10(3)(c)1.L. L. That, except as provided in sub. (3m), the woman is not required to pay any amount for performance or inducement of the abortion until at least 24 hours have elapsed after the requirements of this paragraph are met.

253.10(3)(c)2. 2. Except as provided in sub. (3m), at least 24 hours before the abortion is to be performed or induced, the physician who is to perform or induce the abortion, a qualified person assisting the physician or another qualified physician has, in person, orally informed the woman of all of the following:

253.10(3)(c)2.a. a. That benefits under the medical assistance program may be available for prenatal care, childbirth and neonatal care.

253.10(3)(c)2.b. b. That the father of the unborn child is liable for assistance in the support of the woman’s child, if born, even if the father has offered to pay for the abortion.

253.10(3)(c)2.c. c. That the woman has a legal right to continue her pregnancy and to keep the child; to place the child in a foster home for 6 months, in a group home for 15 days, or in a shelter care facility approved under s. 938.22 (2) (c) for 20 days; to petition a court for placement of the child in a foster home or group home or with a relative; or to place the child for adoption under a process that involves court approval both of the voluntary termination of parental rights and of the adoption.

253.10(3)(c)2.d. d. That the woman has the right to receive and review the printed materials described in par. (d). The physician or qualified person assisting the physician shall physically give the materials to the woman and shall, in person, orally inform her that the materials are free of charge, have been provided by the state and describe the unborn child and list agencies that offer alternatives to abortion and shall provide her with the current updated copies of the printed materials free of charge.

253.10(3)(c)2.e. e. If the woman has received a diagnosis of disability for her unborn child, that the printed materials described in par. (d) contain information on community-based services and financial assistance programs for children with disabilities and their families, information on support groups for people with disabilities and parents of children with disabilities and information on adoption of children with special needs.

253.10(3)(c)2.em. em. That the printed materials described in par. (d) contain information on the availability of perinatal hospice.

253.10(3)(c)2.f. f. If the woman asserts that her pregnancy is the result of sexual assault or incest, that the printed materials described in par. (d) contain information on counseling services and support groups for victims of sexual assault and incest and legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father’s parental rights.

253.10(3)(c)2.fm. fm. That the printed materials described in par. (d) contain information on services available for victims or individuals at risk of domestic abuse.

253.10(3)(c)2.g. g. That the printed materials described in par. (d) contain information on the availability of public and private agencies and services to provide the woman with information on family planning, as defined in s. 253.07 (1) (a), including natural family planning information.

253.10(3)(c)3. 3. The information that is required under subds. 1. and 2. is provided to the woman in an individual setting that protects her privacy, maintains the confidentiality of her decision and ensures that the information she receives focuses on her individual circumstances. This subdivision may not be construed to prevent the woman from having a family member, or any other person of her choice, present during her private counseling.

253.10(3)(c)4. 4. Whoever provides the information that is required under subd. 1. or 2., or both, provides adequate opportunity for the woman to ask questions, including questions concerning the pregnancy, her unborn child, abortion, foster care and adoption, and provides the information that is requested or indicates to the woman where she can obtain the information.

253.10(3)(c)5. 5. The woman certifies in writing on a form that the department shall provide, prior to performance or inducement of the abortion, that the information that is required under subds. 1. and 2. has been provided to her in the manner specified in subd. 3., that the ultrasound required under sub. (3g) has been performed or that requirement is waived under sub. (3m) (a), that she has been offered the information described in par. (d) and that all of her questions, as specified under subd. 4., have been answered in a satisfactory manner. The physician who is to perform or induce the abortion or the qualified person assisting the physician shall write on the certification form the name of the physician who is to perform or induce the abortion. The woman shall indicate on the certification form who provided the information to her and when it was provided and who performed the ultrasound and when it was performed, unless the ultrasound requirement is waived under sub. (3m) (a). If the ultrasound required under sub. (3g) was performed at a facility other than the facility where the physician who is to perform or induce the abortion is located, the woman shall provide to the physician who is to perform or induce the abortion the certification form described under sub. (3g) (d).

253.10(3)(c)6. 6. Prior to the performance or the inducement of the abortion, the physician who is to perform or induce the abortion or the qualified person assisting the physician receives the written certification that is required under subd. 5. The physician or qualified person assisting the physician shall place the certification in the woman’s medical record and shall provide the woman with a copy of the certification.

253.10(3)(c)7. 7. If the woman considering an abortion is a minor, unless s. 48.375 (4) (a) 2. applies, the requirements to provide information to the woman under subds. 1. to 6. apply also to require provision of the information to the individual whose consent is also required under s. 48.375 (4) (a) 1. If the woman considering an abortion is an individual adjudicated incompetent in this state, the requirements to provide information to the woman under subds. 1. to 6. apply to also require provision of the information to the person appointed as the woman’s guardian.

253.10(3)(d) (d) Printed information. By the date that is 60 days after May 16, 1996, the department shall cause to be published in English, Spanish, and other languages spoken by a significant number of state residents, as determined by the department, materials that are in an easily comprehensible format and are printed in type of not less than 12-point size. The department shall distribute a reasonably adequate number of the materials to county departments as specified under s. 46.245 and upon request, shall annually review the materials for accuracy and shall exercise reasonable diligence in providing materials that are accurate and current. The materials shall be all of the following:

253.10(3)(d)1. 1. Geographically indexed materials that are designed to inform a woman about public and private agencies, including adoption agencies, and services that are available to provide information on family planning, as defined in s. 253.07 (1) (a), including natural family planning information, to provide ultrasound imaging services, to assist her if she has received a diagnosis that her unborn child has a disability or if her pregnancy is the result of sexual assault or incest and to assist her through pregnancy, upon childbirth and while the child is dependent. The materials shall include a comprehensive list of the agencies available, a description of the services that they offer and a description of the manner in which they may be contacted, including telephone numbers and addresses, or, at the option of the department, the materials shall include a toll-free, 24-hour telephone number that may be called to obtain an oral listing of available agencies and services in the locality of the caller and a description of the services that the agencies offer and the manner in which they may be contacted. The materials shall provide information on the availability of governmentally funded programs that serve pregnant women and children. Services identified for the woman shall include medical assistance for pregnant women and children under s. 49.47 (4) (am) and 49.471, the availability of family or medical leave under s. 103.10, the Wisconsin works program under ss. 49.141 to 49.161, child care services, child support laws and programs and the credit for expenses for household and dependent care and services necessary for gainful employment under section 21 of the Internal Revenue Code. The materials shall state that it is unlawful to perform an abortion for which consent has been coerced, that any physician who performs or induces an abortion without obtaining the woman’s voluntary and informed consent is liable to her for damages in a civil action and is subject to a civil penalty, that the father of a child is liable for assistance in the support of the child, even in instances in which the father has offered to pay for an abortion, and that adoptive parents may pay the costs of prenatal care, childbirth and neonatal care. The materials shall include information, for a woman whose pregnancy is the result of sexual assault or incest, on legal protections available to the woman and her child if she wishes to oppose establishment of paternity or to terminate the father’s parental rights. The materials shall include information on services in the state that are available for victims or individuals at risk of domestic abuse. The materials shall include information on the availability of perinatal hospice.

253.10(3)(d)2. 2. Materials, including photographs, pictures or drawings, that are designed to inform the woman of the probable anatomical and physiological characteristics of the unborn child at 2-week gestational increments for the first 16 weeks of her pregnancy and at 4-week gestational increments from the 17th week of the pregnancy to full term, including any relevant information regarding the time at which the unborn child could possibly be viable. The pictures or drawings must contain the dimensions of the unborn child and must be realistic and appropriate for the stage of pregnancy depicted. The materials shall be objective, nonjudgmental and designed to convey only accurate scientific information about the unborn child at the various gestational ages, including appearance, mobility, brain and heart activity and function, tactile sensitivity and the presence of internal organs and external members. The materials shall also contain objective, accurate information describing the methods of abortion procedures commonly employed, the medical and psychological risks commonly associated with each such procedure, including the risks of infection, psychological trauma, hemorrhage, endometritis, perforated uterus, incomplete abortion, failed abortion, danger to subsequent pregnancies and infertility, and the medical risks commonly associated with carrying a child to birth.

253.10(3)(d)3. 3. A certification form for use under par. (c) 5. that lists, in a check-off format, all of the information required to be provided under that subdivision.

253.10(3)(e) (e) Requirement to obtain materials. A physician who intends to perform or induce an abortion or another qualified physician, who reasonably believes that he or she might have a patient for whom the information under par. (d) is required to be given, shall request a reasonably adequate number of the materials that are described under par. (d) from the department under par. (d) or from a county department as specified under s. 46.245.

253.10(3)(em) (em) Ultrasound materials and form.

253.10(3)(em)1. 1. The department shall compile a list of facilities, including the names, addresses, and phone numbers, that provide ultrasounds at no cost. The department shall make this list available to the public and shall provide the list to every facility that performs or induces an abortion.

253.10(3)(em)2. 2. The department shall provide to every facility that performs ultrasounds at no cost a list of the requirements under sub. (3g).

253.10(3)(em)3. 3. Any facility that intends to perform ultrasounds on pregnant women who are seeking to have abortions performed or induced shall create a form on which a physician at that facility certifies that the requirements under sub. (3g) are satisfied and provides a date the requirements under sub. (3g) are satisfied.

253.10(3)(f) (f) Medical emergency. If a medical emergency exists, the physician who is to perform or induce the abortion necessitated by the medical emergency shall inform the woman, prior to the abortion if possible, of the medical indications supporting the physician’s reasonable medical judgment that an immediate abortion is necessary to avert her death or that a 24-hour delay in performance or inducement of an abortion will create a serious risk of substantial and irreversible impairment of one or more of the woman’s major bodily functions. If possible, the physician shall obtain the woman’s written consent prior to the abortion. The physician shall certify these medical indications in writing and place the certification in the woman’s medical record.

253.10(3)(g) (g) Presumptions. Satisfaction of the conditions required under par. (c) creates a rebuttable presumption that the woman’s consent and, if the woman is a minor and if s. 48.375 (4) (a) 2. does not apply, the consent of the individual who also gives consent under s. 48.375 (4) (a) 1. to an abortion is informed. The presumption of informed consent may be overcome by a preponderance of evidence that establishes that the consent was obtained through fraud, negligence, deception, misrepresentation or omission of a material fact. There is no presumption that consent to an abortion is voluntary.

253.10(3g) (3g) Performance of ultrasound.

253.10(3g)(a) (a) Except as provided under sub. (3m) and except in a medical emergency and before a person may perform or induce an abortion on a pregnant woman, the physician who is to perform or induce the abortion, or any physician requested by the pregnant woman, shall do all of the following, or shall arrange for a person who is qualified to perform an ultrasound to do all of the following: