Chapter 253

253.105(4)(d) (d) A conviction under sub. (3) is not a condition precedent to bringing an action, obtaining a judgment, or collecting a judgment under this subsection.

253.105(4)(e) (e) A contract is not a defense to an action under this subsection.

253.105(4)(f) (f) Nothing in this section limits the common law rights of a person that are not in conflict with sub. (2).

253.105(5) (5) Confidentiality in court proceedings.

253.105(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 induced or attempted to be 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.

253.105(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 induced, or attempted to be induced, in violation of this section.

253.105(5)(c) (c) The section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

253.105(6) (6) 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.

253.105 History History: 2011 a. 217.

253.107 253.107 Probable postfertilization age; later-term abortions.

253.107(1) (1) Definitions. In this section:

253.107(1)(a) (a) “Abortion” has the meaning given in s. 253.10 (2) (a).

253.107(1)(b) (b) “Medical emergency” has the meaning given in s. 253.10 (2) (d).

253.107(1)(c) (c) “Probable postfertilization age of the unborn child” means the number of weeks that have elapsed from the probable time of fertilization of a woman’s ovum.

253.107(2) (2) Probable postfertilization age. Except in the case of a medical emergency, no physician may perform or induce an abortion, or attempt to perform or induce an abortion, unless the physician performing or inducing it has first made a determination of the probable postfertilization age of the unborn child or relied upon such a determination made by another physician.

253.107(3) (3) Protection of unborn child capable of feeling pain from abortions.

253.107(3)(a) (a) No person shall perform or induce or attempt to perform or induce an abortion upon a woman when the unborn child is considered capable of experiencing pain unless the woman is undergoing a medical emergency. For purposes of this subsection, an unborn child is considered to be capable of experiencing pain if the probable postfertilization age of the unborn child is 20 or more weeks.

253.107(3)(b) (b) When the unborn child is considered capable of experiencing pain and the pregnant woman is undergoing a medical emergency, the physician shall terminate the pregnancy in the manner that, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless the termination of the pregnancy in that manner poses a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than other available methods.

253.107(4) (4) Penalty. Any person who violates sub. (3) (a) is guilty of a Class I felony. No penalty may be assessed against a woman upon whom an abortion is performed or induced or attempted to be performed or induced.

253.107(5) (5) Civil remedies; injunctions.

253.107(5)(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:

253.107(5)(a)1. 1. A woman on whom an abortion is performed or induced or attempted to be performed or induced.

253.107(5)(a)2. 2. The father of the aborted unborn child or the unborn child that is attempted to be aborted, unless the pregnancy is the result of sexual assault under s. 940.225 (1), (2), or (3) or incest under s. 948.06 (1) or (1m).

253.107(5)(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 punitive damages for a violation that satisfies a standard under s. 895.043 (3).

253.107(5)(c) (c)

253.107(5)(c)1. 1. 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.

253.107(5)(c)2. 2. 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.

253.107(5)(d) (d) A contract is not a defense to an action under this subsection.

253.107(5)(e) (e) Nothing in this subsection limits the common law rights of a person that are not in conflict with sub. (2) or (3).

253.107(5)(f) (f) A prosecuting attorney with appropriate jurisdiction may bring an action for injunctive relief against a person who has intentionally or recklessly violated this section.

253.107(6) (6) Confidentiality in court proceedings.

253.107(6)(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.

253.107(6)(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.

253.107(6)(c) (c) This section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

253.107(7) (7) 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.

253.107 History History: 2015 a. 56.

253.11 253.11 Infant blindness.

253.11(1) (1) For the prevention of ophthalmia neonatorum or infant blindness the attending physician or midwife shall use a prophylactic agent approved by the department.

253.11(2) (2) In a confinement not attended by a physician or nurse-midwife, if one or both eyes of an infant become inflamed, swollen and red or show an unnatural discharge at any time within 2 weeks after birth, the nurse, parents, or other person in charge shall report the facts in writing within 6 hours to the local health officer who shall immediately warn the person of the danger. The local health officer shall employ at the expense of the local health department a competent physician to examine and treat the case.

253.11(3) (3) Any person who violates this section may be required to forfeit not more than $1,000.

253.11 History History: 1979 c. 221; 1987 a. 332; 1993 a. 27 s. 314; Stats. 1993 s. 253.11.

253.115 253.115 Newborn hearing screening.

253.115(1) (1) Definitions. In this section:

253.115(1)(a) (a) “Hearing loss” means an inability in one or both ears to detect sounds at 30 decibels hearing level or greater in the frequency region of 500 to 4,000 hertz that affects speech recognition and auditory comprehension.

253.115(1)(b) (b) “Hertz” means a unit of frequency equal to one cycle per second.

253.115(1)(c) (c) “Hospital” has the meaning given in s. 50.33 (2).

253.115(1)(d) (d) “Infant” means a child from birth to 3 months of age.

253.115(1)(e) (e) “Newborn hearing screening program” means a system of a hospital under which an infant may be tested, using currently available medical techniques, to determine if the infant has a hearing loss.

253.115(2) (2) Screening program report. Beginning July 1, 2002, the department shall annually collect information from hospitals for the previous calendar year concerning the numbers of deliveries in each hospital and the availability in each hospital of a newborn hearing screening program. From this information, by July 31, 2003, and annually thereafter, the department shall determine the percentage of deliveries in this state that are performed in hospitals that have newborn hearing screening programs and shall report this information to the appropriate standing committees of the legislature under s. 13.172 (3).

253.115(3) (3) Hospital screening program. If, by August 5, 2003, the department determines that fewer than 88 percent of all deliveries in this state are performed in hospitals that have a newborn hearing screening program and so notifies the hospitals, every hospital shall, by January 1, 2004, have a newborn hearing screening program that is available to all infants who are delivered in the hospital.

253.115(4) (4) Screening required. Except as provided in sub. (6), the physician, nurse-midwife licensed under s. 441.15, or certified professional midwife licensed under s. 440.982 who attended the birth shall ensure that the infant is screened for hearing loss before being discharged from a hospital, or within 30 days of birth if the infant was not born in a hospital.

253.115(5) (5) Referral to follow-up services. The department shall provide referrals to intervention programs for hearing loss.

253.115(6) (6) Exceptions.

253.115(6)(a) (a) Subsection (4) does not apply if the parents or legal guardian of the child object to a screen for hearing loss on the grounds that the test conflicts with their religious tenets and practices.

253.115(6)(b) (b) No screening may be performed under sub. (4) unless the parents or legal guardian are fully informed of the purposes of a screen for hearing loss and have been given reasonable opportunity to object under par. (a) to the screen.

253.115(7) (7) Screening results.

253.115(7)(a) (a) The physician, nurse-midwife licensed under s. 441.15, or certified professional midwife licensed under s. 440.982 who is required to ensure that the infant is screened for hearing loss under sub. (4) shall do all of the following:

253.115(7)(a)1. 1. Ensure the parents or legal guardian are advised of the screening results.

253.115(7)(a)2. 2. If the infant has an abnormal hearing screening result, ensure the parents or legal guardian are provided information on available resources for diagnosis and treatment of hearing loss.

253.115(7)(a)3. 3. Send to the state laboratory of hygiene board screening results and the infant’s risk factors to contract a hearing loss.

253.115(7)(b) (b) The state laboratory of hygiene board shall send the information provided under par. (a) 3. to the department.

253.115(8) (8) Confidentiality. Except as provided under sub. (7) (a) 3. and (b), no information obtained under this section from the parents or legal guardian may be disclosed except for use in statistical data compiled by the department without reference to the identity of any individual and except as provided in s. 146.82 (2).

253.115 History History: 1999 a. 9, 185; 2009 a. 279; 2011 a. 260.

253.12 253.12 Birth defect prevention and surveillance system.

253.12(1) (1) Definitions. In this section:

253.12(1)(a) (a) “Birth defect” means any of the following conditions affecting an infant or child that occurs prior to or at birth and that requires medical or surgical intervention or interferes with normal growth and development:

253.12(1)(a)1. 1. A structural deformation, disruption or dysplasia.

253.12(1)(a)2. 2. A genetic, inherited or biochemical disease.

253.12(1)(b) (b) “Pediatric specialty clinic” means a clinic the primary purpose of which is to provide pediatric specialty diagnostic, counseling and medical management services to persons with birth defects by a physician subspecialist.

253.12(1)(c) (c) “Infant or child” means a human being from birth to the age of 2 years.

253.12(1)(d) (d) “Physician” has the meaning given in s. 448.01 (5).

253.12(2) (2) Reporting.

253.12(2)(a) (a) Except as provided in par. (b), all of the following shall report in the manner prescribed by the department under sub. (3) (a) 3. a birth defect in an infant or child that is specified under sub. (3) (a) 2. or (d):

253.12(2)(a)1. 1. A pediatric specialty clinic in which the birth defect is diagnosed in an infant or child or treatment for the birth defect is provided to the infant or child.

253.12(2)(a)2. 2. A physician who diagnoses the birth defect or provides treatment to the infant or child for the birth defect.

253.12(2)(am) (am) Any hospital in which a birth defect is diagnosed in an infant or child or treatment is provided to the infant or child may report the birth defect in the manner prescribed by the department under sub. (3) (a) 3.

253.12(2)(b) (b) No person specified under par. (a) need report under par. (a) if that person knows that another person specified under par. (a) or (am) has already reported to the department the required information with respect to the same birth defect of the same infant or child.

253.12(2)(c) (c) If the department determines that there is a discrepancy in any data reported under this subsection, the department may request a physician, hospital or pediatric specialty clinic to provide to the department information contained in the medical records of patients who have a confirmed or suspected birth defect diagnosis. The physician, hospital or pediatric specialty clinic shall provide that information within 10 working days after the department requests it.

253.12(2)(d) (d) The department may not require a person specified under par. (a) 1. or 2. to report the name of an infant or child for whom a report is made under par. (a) if the parent or guardian of the infant or child states in writing that he or she refuses to release the name or address of the infant or child.

253.12(2)(e) (e) If the address of an infant or child for whom a report is made under par. (a) is included in the report, the department shall encode the address to refer to the same geographical location.

253.12(3) (3) Department duties and powers.

253.12(3)(a) (a) The department shall do all of the following:

253.12(3)(a)1. 1. Establish and maintain an up-to-date registry that documents the diagnosis in this state of any infant or child who has a birth defect, regardless of the residence of the infant or child. The department shall include in the registry information that will facilitate all of the following:

253.12(3)(a)1.a. a. Identification of risk factors for birth defects.

253.12(3)(a)1.b. b. Investigation of the incidence, prevalence and trends of birth defects using epidemiological surveys.

253.12(3)(a)1.c. c. Development of primary preventive strategies to decrease the occurrence of birth defects without increasing abortions.

253.12(3)(a)1.d. d. Referrals for early intervention or other appropriate services.

253.12(3)(a)2. 2. Specify by rule any birth defects the department determines the existence of which requires a report under sub. (2) to be submitted to the department and that the council under sub. (4) does not unanimously decide should be reported.

253.12(3)(a)3. 3. Specify by rule the content, format and procedures for submitting a report under sub. (2).