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2011 - 2012 LEGISLATURE
November 25, 2011 - Introduced by Senators Lazich, Galloway, Grothman and
Leibham, cosponsored by Representatives Litjens, Brooks, Craig, Honadel,
Jacque, T. Larson, LeMahieu, A. Ott, J. Ott, Strachota, Thiesfeldt, Wynn,
Ziegelbauer, Endsley
and Kleefisch. Referred to Committee on Health.
SB306,1,7 1An Act to repeal 940.04 (3) and (4); to amend 253.10 (3) (b), 253.10 (3) (d) 1.,
2253.10 (5) and 253.10 (7); and to create 253.10 (2) (am), 253.10 (3) (c) 1. hm.,
3253.10 (3) (c) 1. jm., 253.10 (3) (c) 2. fm., 253.10 (7m) and 253.105 of the statutes;
4relating to: voluntary and informed consent to an abortion, information on
5domestic abuse services, giving a woman an abortion-inducing drug, repealing
6criminal sanctions against women who perform or obtain certain abortion
7procedures, and providing a penalty.
Analysis by the Legislative Reference Bureau
Voluntary and informed consent and information
on domestic abuse services
Under current law, a woman upon whom an abortion is to be performed or
induced must give voluntary and informed written consent to the abortion. Consent
is voluntary only if it is given freely and without coercion. This bill requires that the
physician who is to perform or induce the abortion determine whether or not the
woman's consent is, in fact, voluntary. The physician must determine if the woman's
consent is voluntary by speaking to her 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 must

inform the woman of services for victims or individuals at risk of domestic abuse and
provide her with private access to a telephone.
Currently, 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 the woman written materials prepared by the Department of Health Services
(DHS). 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. Any person who violates the informed consent requirements is
required to forfeit not less than $1,000 nor more than $10,000 and is liable to the
woman upon whom the abortion is performed or induced.
The bill requires that, at least 24 hours before the abortion is performed or
induced, the physician or another qualified physician inform the woman that she has
a right to refuse or 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. The
physician or another qualified physician must also inform the woman, at least 24
hours before the abortion is induced that, if the abortion is induced by an
abortion-inducing drug, the woman must return to the abortion facility for a
follow-up visit 12 to 18 days after use of the drug to confirm the termination of the
pregnancy and evaluate the woman's medical condition. The bill requires that the
physician or assistant inform the woman that the materials prepared by DHS, which
must be given to her, contain information on services available for victims or
individuals at risk of domestic abuse. Additionally, the bill requires DHS to include
in the printed materials information on services in the state that are available for
victims or individuals at risk of domestic abuse. The bill specifies that none of the
penalties for violating the informed consent requirements may be assessed against
the woman upon whom the abortion is to be performed or induced or attempted to
be performed or induced.
Restrictions on the use of abortion-inducing drugs
This bill prohibits a person from giving a woman an abortion-inducing drug
unless the physician who provided the drug for the woman performs a physical exam
on the woman and is physically present in the room when the drug is given to the
woman. An abortion-inducing drug is a drug that is prescribed to terminate the
pregnancy of a woman who is known to be pregnant. Under this bill, a person who
gives a woman an abortion-inducing drug in a manner that violates the prohibition
is guilty of a Class I felony and may be subject to a civil action. This bill specifies that
a penalty may not be assessed against a woman who receives an abortion-inducing
drug.
Repeal of certain abortion prohibitions
Under current law, a pregnant woman who intentionally destroys the life of her
unborn child or who consents to such destruction by another may be fined not more
than $200, imprisoned not more than six months, or both. For the same action with
respect to an unborn quick child the penalty is a fine not to exceed $10,000,
imprisonment for not more than three years and six month, or both. None of these

penalties apply to a therapeutic abortion that is performed by a physician; is
necessary, or advised by two other physicians as necessary, to save the life of the
mother; and is performed, except on an emergency basis, in a licensed maternity
hospital. These provisions were cited, along with other provisions not affected by this
bill that prohibit performing an abortion generally, in Roe v. Wade, 410 U.S. 113
(1973), as substantially similar to a Texas statute that was held to violate the due
process clause of the 14th Amendment to the U.S. Constitution.
A separate provision in current law prohibits prosecution of and imposing or
enforcing a fine or imprisonment against a woman who obtains an abortion or
otherwise violates any abortion law with respect to her unborn child or fetus.
Further, crimes of being a party to a crime, solicitation, and conspiracy do not apply
to a woman who obtains an abortion or otherwise violates an abortion law with
respect to her unborn child or fetus.
This bill repeals the provisions in current law under which a pregnant woman
who intentionally destroys the life of her unborn child or who consents to such
destruction by another may be fined, imprisoned, or both. The bill does not affect any
other criminal prohibition or limitation on abortion in current law and does not affect
the provision that prohibits the prosecution, fine, or imprisonment against a woman
who obtains an abortion or otherwise violates any abortion law with regard to her
unborn child or fetus.
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:
SB306, s. 1 1Section 1. 253.10 (2) (am) of the statutes is created to read:
SB306,3,42 253.10 (2) (am) "Abortion-inducing drug" means a drug, medicine, oral
3hormonal compound, mixture, or preparation, when it is prescribed to terminate the
4pregnancy of a woman known to be pregnant.
SB306, s. 2 5Section 2. 253.10 (3) (b) of the statutes is amended to read:
SB306,4,56 253.10 (3) (b) Voluntary consent. Consent under this section to an abortion is
7voluntary only if the consent is given freely and without coercion by any person. The
8physician who is to perform or induce the abortion shall determine whether the
9woman's consent is, in fact, voluntary. Notwithstanding par. (c) 3., the physician
10shall make the determination by speaking to the woman in person, out of the

1presence of anyone other than a person working for or with the physician. If the
2physician has reason to suspect that the woman is in danger of being physically
3harmed by anyone who is coercing the woman to consent to an abortion against her
4will, the physician shall inform the woman of services for victims or individuals at
5risk of domestic abuse and provide her with private access to a telephone.
SB306, s. 3 6Section 3. 253.10 (3) (c) 1. hm. of the statutes is created to read:
SB306,4,107 253.10 (3) (c) 1. hm. If the abortion is induced by an abortion-inducing drug,
8that the woman must return to the abortion facility for a follow-up visit 12 to 18 days
9after the use of an abortion-inducing drug to confirm the termination of the
10pregnancy and evaluate the woman's medical condition.
SB306, s. 4 11Section 4. 253.10 (3) (c) 1. jm. of the statutes is created to read:
SB306,4,1512 253.10 (3) (c) 1. jm. That the woman has a right to refuse to consent to an
13abortion, that her consent is not voluntary if anyone is coercing her to consent to an
14abortion against her will, and that it is unlawful for the physician to perform or
15induce the abortion without her voluntary consent.
SB306, s. 5 16Section 5. 253.10 (3) (c) 2. fm. of the statutes is created to read:
SB306,4,1817 253.10 (3) (c) 2. fm. That the printed materials described in par. (d) contain
18information on services available for victims or individuals at risk of domestic abuse.
SB306, s. 6 19Section 6. 253.10 (3) (d) 1. of the statutes is amended to read:
SB306,6,420 253.10 (3) (d) 1. Geographically indexed materials that are designed to inform
21a woman about public and private agencies, including adoption agencies, and
22services that are available to provide information on family planning, as defined in
23s. 253.07 (1) (a), including natural family planning information, to provide
24ultrasound imaging services, to assist her if she has received a diagnosis that her
25unborn child has a disability or if her pregnancy is the result of sexual assault or

1incest and to assist her through pregnancy, upon childbirth and while the child is
2dependent. The materials shall include a comprehensive list of the agencies
3available, a description of the services that they offer and a description of the manner
4in which they may be contacted, including telephone numbers and addresses, or, at
5the option of the department, the materials shall include a toll-free, 24-hour
6telephone number that may be called to obtain an oral listing of available agencies
7and services in the locality of the caller and a description of the services that the
8agencies offer and the manner in which they may be contacted. The materials shall
9provide information on the availability of governmentally funded programs that
10serve pregnant women and children. Services identified for the woman shall include
11medical assistance for pregnant women and children under s. 49.47 (4) (am) and
1249.471, the availability of family or medical leave under s. 103.10, the Wisconsin
13works program under ss. 49.141 to 49.161, child care services, child support laws and
14programs and the credit for expenses for household and dependent care and services
15necessary for gainful employment under section 21 of the internal revenue code
16Internal Revenue Code. The materials shall state that it is unlawful to perform an
17abortion for which consent has been coerced, that any physician who performs or
18induces an abortion without obtaining the woman's voluntary and informed consent
19is liable to her for damages in a civil action and is subject to a civil penalty, that the
20father of a child is liable for assistance in the support of the child, even in instances
21in which the father has offered to pay for an abortion, and that adoptive parents may
22pay the costs of prenatal care, childbirth and neonatal care. The materials shall
23include information, for a woman whose pregnancy is the result of sexual assault or
24incest, on legal protections available to the woman and her child if she wishes to
25oppose establishment of paternity or to terminate the father's parental rights. The

1materials shall state that fetal ultrasound imaging and auscultation of fetal heart
2tone services are obtainable by pregnant women who wish to use them and shall
3describe the services. The materials shall include information on services in the
4state that are available for victims or individuals at risk of domestic abuse.
SB306, s. 7 5Section 7. 253.10 (5) of the statutes is amended to read:
SB306,6,96 253.10 (5) Penalty. Any person who violates sub. (3) or (3m) (a) 2. or (b) 2. shall
7be required to forfeit not less than $1,000 nor more than $10,000. No penalty may
8be assessed against the woman upon whom the abortion is performed or induced or
9attempted to be performed or induced.
SB306, s. 8 10Section 8. 253.10 (7) of the statutes is amended to read:
SB306,6,1811 253.10 (7) Affirmative defense. No person is liable under sub. (5) or (6) or
12under s. 441.07 (1) (f), 448.02 (3) (a), or 457.26 (2) (gm) for failure under sub. (3) (c)
132. d. to provide the printed materials described in sub. (3) (d) to a woman or for failure
14under sub. (3) (c) 2. d., e., f., fm., or g. to describe the contents of the printed materials
15if the person has made a reasonably diligent effort to obtain the printed materials
16under sub. (3) (e) and s. 46.245 and the department and the county department under
17s. 46.215, 46.22, or 46.23 have not made the printed materials available at the time
18that the person is required to give them to the woman.
SB306, s. 9 19Section 9. 253.10 (7m) of the statutes is created to read:
SB306,7,720 253.10 (7m) Confidentiality in court proceedings. (a) In every proceeding
21brought under this section, the court, upon motion or sua sponte, shall rule whether
22the identity of any woman upon whom an abortion was performed or induced or
23attempted to be performed or induced shall be kept confidential unless the woman
24waives confidentiality. If the court determines that a woman's identity should be
25kept confidential, the court shall issue orders to the parties, witnesses, and counsel

1and shall direct the sealing of the record and exclusion of individuals from
2courtrooms or hearing rooms to the extent necessary to safeguard the woman's
3identity from public disclosure. If the court issues an order to keep a woman's
4identity confidential, the court shall provide written findings explaining why the
5woman's identity should be kept confidential, why the order is essential to that end,
6how the order is narrowly tailored to its purpose, and why no reasonable less
7restrictive alternative exists.
SB306,7,118 (b) Any person, except for a public official, who brings an action under this
9section shall do so under a pseudonym unless the person obtains the written consent
10of the woman upon whom an abortion was performed or induced, or attempted to be
11performed or induced, in violation of this section.
SB306,7,1312 (c) The section may not be construed to allow the identity of a plaintiff or a
13witness to be concealed from the defendant.
SB306, s. 10 14Section 10. 253.105 of the statutes is created to read:
SB306,7,16 15253.105 Prescription and use of abortion-inducing drugs. (1) In this
16section:
SB306,7,1717 (a) "Abortion" has the meaning given in s. 253.10 (2) (a).
SB306,7,1818 (b) "Abortion-inducing drug" has the meaning given in s. 253.10 (2) (am).
SB306,7,1919 (c) "Physician" has the meaning given in s. 448.01 (5).
SB306,7,22 20(2) No person may give an abortion-inducing drug to a woman unless the
21physician who prescribed, or otherwise provided, the abortion-inducing drug for the
22woman:
SB306,7,2423 (a) Performs a physical exam of the woman before the information is provided
24under s. 253.10 (3) (c) 1.
SB306,7,2525 (b) Is physically present in the room when the drug is given to the woman.
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