Wisconsin

Legal analysis

The Wisconsin Supreme Court in Kaul v. Urmanski, 2025 WI 32 (July 2, 2025), held in a 4-3 decision that Wis. Stat. § 940.04(1) — the 1849 statute criminalizing intentional destruction of an unborn child — had been impliedly repealed as to abortion by the Legislature's subsequent comprehensive regulation of the 'who, what, where, when, and how' of abortion. The operative gestational limit is Wis. Stat. § 253.107(3)(a), which prohibits abortion when the probable postfertilization age is 20 or more weeks, except in a medical emergency. Wis. Stat. § 940.15 separately criminalizes post-viability abortion (Class I felony), with a life-or-health exception. The pregnant woman is expressly exempted from all criminal liability under Wis. Stat. § 940.13, § 940.15(7), § 253.107(4), and § 253.105(3). No state constitutional right to abortion has been recognized; Planned Parenthood of Wisconsin v. Urmanski, 2024AP330-OA, was dismissed as moot on July 2, 2025 following Kaul.

Legal analysis

The primary operative definition appears in Wis. Stat. § 253.10(2)(a), which is incorporated by reference into §§ 253.105, 253.107, and 253.095. It uses '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.' This definition carves out removal of a dead fetus (miscarriage management) and post-birth care. The parental-consent statute (§ 48.375(2)(a)) adds 'after implantation of a fertilized human ovum,' potentially excluding certain contraceptive methods from its scope. The funding prohibition (§ 20.927(1g)) uses the more sweeping 'intentional destruction of the life of an unborn child' where 'unborn child means a human being from the time of conception until it is born alive.' The fetal-homicide statute (§ 939.75(1)) separately defines 'unborn child' as 'any individual of the human species from fertilization until birth that is gestating inside a woman.' No single uniform definition controls all chapters.

Legal analysis

Following Dobbs v. Jackson Women's Health Org., 597 U.S. 215 (2022), which overruled Roe v. Wade, Wisconsin faced the question of whether its pre-Roe criminal abortion statute, Wis. Stat. § 940.04 (enacted 1849), would spring back into force. The Wisconsin Supreme Court answered that question in Kaul v. Urmanski, 2025 WI 32 (July 2, 2025), holding 4-3 that § 940.04(1) had been impliedly repealed as to abortion by the Legislature's subsequent comprehensive regulation of the field — including Wis. Stat. §§ 940.15 (post-viability ban, 1985), 940.16 (partial-birth abortion ban, 1997), 48.375 (parental consent, 1991), 253.10 (informed consent, 1996), 253.105 (medication abortion restrictions, 2011), and 253.107 (20-week postfertilization ban, 2015). The currently operative gestational ban is § 253.107(3)(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.' An unborn child is considered capable of experiencing pain at 20 or more weeks probable postfertilization age (§ 253.107(1)(c), (3)(a)). Violation is a Class I felony (§ 253.107(4)). The viability ban in § 940.15(2) imposes an additional Class I felony for post-viability abortion, with a life-or-health exception (§ 940.15(3)).

Legal analysis

Kaul v. Urmanski, 2025 WI 32 (July 2, 2025), resolved the central post-Dobbs ambiguity. The court held that § 940.04(1) was impliedly repealed as to abortion, meaning no total ban exists and abortion providers are not subject to the Class H felony under that section. On the same day, the court dismissed Planned Parenthood of Wisconsin v. Urmanski, 2024AP330-OA, which had sought a declaration that the Wisconsin Constitution (Article I, § 1) protects a right to abortion. Wis. Stat. § 253.095 (admitting privileges) remains permanently enjoined: Planned Parenthood of Wisconsin, Inc. v. Van Hollen, 94 F. Supp. 3d 949 (W.D. Wis. 2015), aff'd, 806 F.3d 908 (7th Cir. 2015). The status of Wis. Stat. § 940.16 (partial-birth abortion, Class A felony) post-Dobbs is unsettled; it was enjoined under Stenberg v. Carhart, 530 U.S. 914 (2000), but the Wisconsin Supreme Court's Kaul decision, together with the federal Partial-Birth Abortion Ban Act of 2003 upheld in Gonzales v. Carhart, 550 U.S. 124 (2007), may alter the analysis — particularly as the court noted that § 940.16 is one of the statutes demonstrating the comprehensive regulation that impliedly repealed § 940.04(1). No Wisconsin prosecutor has brought charges under § 940.16 in the post-Dobbs era; its practical enforceability is unclear. Several district attorneys (including in Dane and Milwaukee counties) issued statements in 2022 declining to prosecute abortion-related offenses.

Legal analysis

Wis. Stat. § 253.107(3)(a) uses 'medical emergency,' defined by cross-reference to § 253.10(2)(d) as '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.' Wis. Stat. § 940.15(3) permits post-viability abortion if 'necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman's attending physician.' The 'health' standard in § 940.15(3) is broader than the 'medical emergency' standard in § 253.107.

Legal analysis

The viability ban at § 940.15(3) uses 'life or health' without qualification, determined by 'reasonable medical judgment of the woman's attending physician.' This is a broad standard. The 20-week ban at § 253.107(3)(a) uses 'medical emergency,' which § 253.10(2)(d) defines more narrowly as requiring immediate abortion to avert death or a 24-hour delay creating 'serious risk of substantial and irreversible impairment of one or more of the woman's major bodily functions.' The two standards differ materially in scope. The funding prohibition at § 20.927(2)(b) adds a third standard: 'directly and medically necessary to prevent grave, long-lasting physical health damage to the woman,' with physician certification.

Legal analysis

No Wisconsin statute expressly provides a mental health exception to any abortion restriction. The viability ban's 'health' language (§ 940.15(3)) is textually unqualified, but Wisconsin courts have not interpreted its scope. The 20-week ban's 'medical emergency' definition explicitly references 'major bodily functions,' suggesting a physical-health focus. The funding prohibition's exception for 'grave, long-lasting physical health damage' (§ 20.927(2)(b)) is expressly physical. In the absence of controlling precedent, the availability of an abortion for mental health reasons after viability is legally uncertain.

Legal analysis

The gestational bans in §§ 253.107(3)(a) and 940.15(2) contain no exceptions for rape or incest — only for medical emergency (20-week ban) or life/health (viability ban). Rape and incest appear exclusively as funding exceptions. Wis. Stat. § 20.927(2)(a) permits state funding for an abortion 'in a case of sexual assault or incest, provided that prior thereto the physician signs a certification which so states, and provided that, in the case of sexual assault or incest the crime has been reported to the law enforcement authorities.' This imposes a mandatory police-reporting prerequisite. The civil liability provisions in §§ 253.107(5)(a)2 and 253.105(4)(a)3 disallow claims by a father whose pregnancy resulted from sexual assault.

Legal analysis

Covered by the same provision as rape: Wis. Stat. § 20.927(2)(a). No incest exception exists in the gestational-limit or informed-consent statutes.

Legal analysis

No Wisconsin statute provides an exception for fetal anomalies, fatal or otherwise. The only exceptions to the 20-week and viability bans are medical emergency and life/health of the woman.

Legal analysis

The primary definition at § 253.10(2)(a) includes 'intent other than ... to remove a dead fetus,' thus excluding post-mortality management from the abortion framework. The parental-consent definition at § 48.375(2)(a) uses identical carve-out language. The funding prohibition definition at § 20.927(1g) does not contain this express carve-out but uses 'intentional destruction of the life of an unborn child,' which would not reach a fetus already dead. Ectopic pregnancy treatment (removal of an ectopic embryo) is not expressly excluded from the definition but is also not within the ordinary medical understanding of induced abortion. SB 553 (2025), which passed the Senate, would explicitly exclude ectopic pregnancy treatment and removal of a dead embryo from the definition.

Legal analysis

Procedural abortion is lawful within the 20-week postfertilization limit (§ 253.107(3)(a)) and pre-viability (§ 940.15(2)). Wisconsin has no separate D&E/dismemberment ban. The partial-birth abortion ban at § 940.16 defines 'partial-birth abortion' as 'an abortion in which a person partially vaginally delivers a living child, causes the death of the partially delivered child with the intent to kill the child, and then completes the delivery of the child' (§ 940.16(1)(b)). Violation is a Class A felony (§ 940.16(2)) — the highest felony class, carrying a maximum penalty of life imprisonment. The exception is limited to saving the life of a woman endangered by a physical disorder, illness, or injury (§ 940.16(3)). The official Wisconsin Statutes annotator note acknowledges that enforcement was enjoined under Stenberg v. Carhart, 530 U.S. 914 (2000), and Hope Clinic v. Ryan, 249 F.3d 603 (2001), but adds 'But see Dobbs v. Jackson Women's Health Organization.' The Wisconsin Supreme Court in Kaul cited § 940.16 among the comprehensive post-Roe regulatory statutes, implying the court views it as operative law. No post-Dobbs litigation has tested its enforceability. The mother is expressly exempted: § 940.16 carries forward the same mother-exemption language.

Legal analysis

Wis. Stat. § 253.105(2) imposes two requirements unique to abortion-inducing drugs: (a) the prescribing physician must '[p]erform[] a physical exam of the woman before the information is provided under s. 253.10(3)(c)1,' and (b) the physician '[i]s physically present in the room when the drug is given to the woman.' 'Abortion-inducing drug' is defined as '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)(am)). Violation is a Class I felony (§ 253.105(3)). The mother is exempted from penalty (§ 253.105(3): 'No penalty may be assessed against a woman to whom an abortion-inducing drug is given'). These provisions, enacted as 2011 Wis. Act 217, together operate as a de facto ban on telehealth prescribing of medication abortion and on mailing abortion pills by Wisconsin prescribers. Federal preemption arguments under the FDA's REMS for mifepristone have not been successfully litigated against Wisconsin's law. Shield-law providers in other states (e.g., Massachusetts, New York, California) mail pills into Wisconsin, and a substantial proportion of Wisconsin medication abortions now occur through this route. Civil liability provisions in § 253.105(4) allow the woman, a minor's parent/guardian, or the father (unless pregnancy resulted from his sexual assault) to bring damages claims.

Legal analysis

Wisconsin provides an exceptionally broad shield for the pregnant woman. Wis. Stat. § 940.13 states: 'No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.' This explicitly negates accomplice and conspiracy liability (the §§ 939.05, 939.30, 939.31 references). Section 940.15(7) separately exempts the woman from the viability ban and its accomplice/conspiracy provisions. Section 253.107(4) and § 253.105(3) each provide: 'No penalty may be assessed against a woman upon whom an abortion is performed or induced or attempted to be performed or induced.' Section 253.095(3): 'No penalty may be assessed against the woman upon whom the abortion is performed or induced or attempted to be performed or induced.' The fetal-homicide statute (§ 939.75(2)(b)3) also exempts '[a]n act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.' Civil liability provisions also carefully avoid naming the pregnant woman as a defendant. Taken together, these provisions mean a self-managing pregnant woman faces zero criminal or civil exposure under Wisconsin law for any abortion-related conduct, regardless of gestational age or method.

Legal analysis

The physician-only restriction appears across the statutory scheme. Wis. Stat. § 940.15(5): 'Whoever intentionally performs an abortion and who is not a physician is guilty of a Class I felony.' Section 253.105(2) restricts abortion-inducing drugs to physicians. Section 253.107(2) refers to 'physician' for the postfertilization-age determination. Section 253.10(3)(c) requires the physician to provide counseling. Section 48.375(4)(a) requires the abortion be performed by a 'physician' as defined in § 448.01(5). 'Physician' means a person licensed to practice medicine and surgery under ch. 448. The admitting-privileges requirement (§ 253.095) also applies the physician-only framework (though that statute is permanently enjoined). There is no statutory authorization for advanced practice clinicians (APCs) to perform or prescribe abortion.

Legal analysis

Wis. Stat. § 940.13 provides: 'No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.' This nullifies accomplice liability (§ 939.05), conspiracy (§ 939.31), and solicitation (§ 939.30, attempt to conspire) for the pregnant woman. The provision is sweeping: 'any provision of any abortion statute.' Reinforcing provisions: § 940.15(7) (viability ban), § 253.107(4) (20-week ban), § 253.105(3) (medication abortion), § 253.095(3) (admitting privileges). The fetal-homicide framework (§ 939.75(2)(b)3) exempts a pregnant woman's acts that harm her own unborn child. No Wisconsin case has tested the outer limits of this exemption.

Legal analysis

Criminal penalties for physicians: § 253.107(4) — Class I felony (violation of 20-week ban); § 940.15(2) — Class I felony (post-viability abortion); § 940.15(5) — Class I felony (performance by non-physician); § 253.105(3) — Class I felony (violation of medication-abortion rules); § 940.16(2) — Class A felony (partial-birth abortion; enforceability uncertain). Under Wis. Stat. § 939.50(3)(i), a Class I felony carries imprisonment up to 3 years 6 months and a fine up to $10,000. A Class A felony carries imprisonment up to life (§ 939.50(3)(a)). Civil liability: § 253.107(5) allows the woman, father (unless pregnancy from his sexual assault), and grandparents to sue for damages including personal injury and emotional distress, plus punitive damages and attorney fees. § 253.105(4) allows similar claims for medication-abortion violations. § 940.15, § 940.16, and § 253.095 contain their own civil-remedy provisions. A physician who violates informed-consent requirements (§ 253.10) may face professional discipline and civil liability. The woman cannot be a defendant in any of these civil actions.

Legal analysis

Wis. Stat. § 253.105(2) restricts the giving of abortion-inducing drugs to scenarios where 'the physician who prescribed, or otherwise provided, the abortion-inducing drug' performed a physical exam and is physically present when the drug is given. The term 'physician' is defined by reference to § 448.01(5), which means a person licensed to practice medicine and surgery. Pharmacists are not addressed in the abortion-specific statutes, but a pharmacist who knowingly dispenses abortion-inducing drugs in violation of § 253.105 could theoretically face accomplice liability under § 939.05, though the state's mother-exemption at § 940.13 does not extend to pharmacists. The practical effect of the in-person requirements is that no Wisconsin pharmacy routine dispenses mifepristone for abortion; the drug is dispensed directly by the physician at the clinic. Out-of-state pharmacy prescriptions shipped into Wisconsin may be subject to Wisconsin's pharmacy and telemedicine laws, but enforcement against out-of-state entities is uncertain.

Legal analysis

The mother-exemption at § 940.13 expressly negates accomplice and conspiracy liability for 'a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus,' specifically citing §§ 939.05 (accomplice), 939.30 (solicitation), and 939.31 (conspiracy). This exemption is personal to the pregnant woman and does not extend to clinical staff. In theory, a nurse who assists a physician in performing an abortion that violates a restriction could be charged as an accomplice under § 939.05. No Wisconsin case has tested this against clinic staff. Several district attorneys (including in Dane and Milwaukee counties) have publicly stated they will not prioritize abortion-related prosecutions.

Legal analysis

Wisconsin's general accomplice statute, Wis. Stat. § 939.05, provides that a person is a party to a crime if the person '[i]ntentionally aids and abets the commission of it.' Since performing a prohibited abortion is a crime (Class I felony for violating the 20-week or viability bans), a person who intentionally assists — by driving the patient, paying for the procedure, or providing other material aid — could theoretically be charged as an accomplice if the underlying abortion violates Wisconsin law. However, the mother-exemption at § 940.13 explicitly negates § 939.05 liability only for the pregnant woman. Civil liability provisions in §§ 253.107(5) and 253.105(4) are limited to those who 'perform' or 'attempt to perform' the abortion and the named civil plaintiffs (woman, father, grandparents) — not helpers. There is no SB8-style civil bounty provision in Wisconsin. No known prosecutions of helpers exist.

Legal analysis

Wisconsin has enacted no 'abortion trafficking' statute (contrast Idaho, Tennessee) and no law penalizing interstate travel for abortion. No Wisconsin statute reaches conduct occurring entirely outside the state. The general accomplice statute (§ 939.05) does not apply because travel to another state for a lawful abortion in that state does not involve a Wisconsin crime. Even if the travel were to facilitate a Wisconsin-prohibited abortion performed out of state, Wisconsin's extraterritorial jurisdiction is limited by general principles of state sovereignty and constitutional travel rights. No local ordinance in Wisconsin purports to restrict abortion travel.

Legal analysis

Wis. Stat. § 20.927 prohibits the use of 'funds of this state or of any county, city, village, town or long-term care district ... or any subdivision or agency of this state' and 'federal funds passing through the state treasury' for abortion except in life, rape/incest, and grave-health cases. It does not reach private funds, employer benefits, charitable grants, or individual payments. No Wisconsin statute penalizes private funding of abortion.

Legal analysis

Wis. Stat. § 253.105(2)(b) requires the physician to be 'physically present in the room when the drug is given to the woman.' This functions as a ban on mailing pills by Wisconsin prescribers and on telehealth prescribing for Wisconsin-based providers. However, receipt of mailed pills is not criminalized for the patient (protected by § 940.13). And § 253.105 does not purport to regulate the conduct of physicians licensed only in other states who mail pills into Wisconsin. The legal question of whether Wisconsin could enforce § 253.105 against an out-of-state shield-law provider remains unresolved: such providers assert their own state's shield laws block Wisconsin subpoenas, extradition, and licensing actions. Wisconsin has not enacted any law specifically prohibiting the mailing of abortion-inducing drugs into the state or criminalizing their receipt. The core federal mail-regulatory question — whether the Comstock Act applies — has not been tested against these shipments.

Legal analysis

No Wisconsin statute criminalizes providing information, referrals, or counseling about abortion. The informed-consent statute (§ 253.10) regulates what physicians must say to patients obtaining abortions but does not penalize third-party speech. General accomplice liability (§ 939.05) requires intent to aid a crime; merely providing information about lawful options is unlikely to satisfy the intent element, particularly given First Amendment constraints recognized in cases like Bigelow v. Virginia, 421 U.S. 809 (1975).

Legal analysis

Wisconsin's civil liability provisions are found in § 253.107(5) (20-week ban), § 253.105(4) (medication abortion), § 253.095(4) (admitting privileges — enjoined), and § 895.038 (partial-birth abortion). None creates a general private enforcement mechanism. In each, standing is limited to specific individuals: the woman on whom the abortion was performed, the father (with a sexual-assault exclusion), and in some statutes grandparents. Damages may include personal injury, emotional distress, punitive damages, and attorney fees. There is no provision for a minimum statutory bounty payable to any member of the public, no provision for injunctive relief by private plaintiffs, and no mechanism resembling Texas's SB8.

Legal analysis

Wis. Stat. § 253.10(3)(d) requires that 'at least 24 hours before the abortion, the physician who is to perform the abortion or the referring physician or a qualified physician' provides the mandated information. The 24-hour period is computed from the time the information is given. The waiting period is subject to the 'medical emergency' exception at § 253.10(2)(d). The counseling must be provided by a physician, not by other clinical staff. This effectively requires two in-person interactions, though the statute does not explicitly mandate two separate clinic visits if the procedure is scheduled more than 24 hours after the initial visit.

Legal analysis

Wis. Stat. § 253.10(3)(c) lists the required content of the voluntary and informed consent, including: 1. The probable gestational age of the unborn child; 2. The particular medical risks associated with the abortion procedure; 3. The availability of fetal ultrasound imaging and auscultation of fetal heart tone services; 4. Medical risks of carrying the child to term; 5. Information about the father's liability for child support (under ch. 767); 6. Printed materials published by the Department of Health Services describing the unborn child's developmental characteristics at two-week gestational increments, and a list of public and private agencies that provide pregnancy-related services; and 7. That benefits may be available for prenatal care, childbirth, and neonatal care and that the father is liable for support. This is a state-scripted counseling requirement. The information must be provided orally 'and, if requested, in writing' by the physician personally — not by a delegate.

Legal analysis

Wis. Stat. § 253.10(3g) requires: (a) that the physician performing the abortion, a referring physician, or a qualified physician 'shall perform an ultrasound on the pregnant woman,' (b) 'shall display the ultrasound images so that the pregnant woman may view them,' and (c) 'shall provide a simultaneous explanation of what the ultrasound is depicting, including the presence of cardiac activity, if present and viewable, and a medical description of the dimensions of the embryo or fetus.' The physician must also auscultate the fetal heart tone if possible and make the heartbeat audible if the woman requests. The pregnant woman may decline to view the ultrasound images or hear the heartbeat. This is a 'mandatory_display' requirement under the schema — the strictest tier — because the physician must perform the ultrasound, display it, and describe it, even though the woman may avert her eyes.

Legal analysis

The combination of § 253.10(3)(c) (physician counseling), § 253.10(3g) (physician-performed ultrasound with display and description), § 253.10(3)(d) (24-hour waiting period), and § 253.105(2)(a)-(b) (physician physical exam and in-room presence for medication dispensing) compels at least two in-person visits to the clinic. The first visit encompasses the physical exam, ultrasound, and counseling; the second visit, at least 24 hours later, is for the procedure. There is no statutory exception for telehealth counseling or remote informed consent.

Legal analysis

Wis. Stat. § 48.375(4)(a) requires that before performing an abortion on an unemancipated minor, the physician must obtain 'the voluntary and informed written consent of the minor and the voluntary and informed written consent of one of her parents; or of the minor's guardian or legal custodian, if one has been appointed; or of an adult family member of the minor; or of one of the minor's foster parents' if certain conditions are met. 'Emancipated minor' is defined at § 48.375(2)(e) to include a minor who is or has been married, has previously given birth, or has been freed from parental care and custody. 'Adult family member' at § 48.375(2)(b) includes grandparents, aunts, uncles, sisters, and brothers who are at least 25 years old. The medical emergency exception at § 48.375(4)(b)1 dispenses with consent when the physician believes, to the best of his or her medical judgment, that a medical emergency exists that complicates the pregnancy so as to require an immediate abortion.

Legal analysis

Wis. Stat. § 48.375(7) provides the judicial waiver procedure. The minor may file a petition in any circuit court. The court shall grant the petition if it finds that the minor is mature and well-informed enough to make the abortion decision independently, or that the abortion is in her best interests (§ 48.375(7)(c)). The proceeding is confidential, and the minor is entitled to court-appointed counsel at no cost. The court must rule within a specified expedited timeframe. Appeal is available under § 809.105, which provides for expedited confidential appellate review.

Legal analysis

No spousal consent or notice statute exists in the Wisconsin code. Planned Parenthood v. Danforth, 428 U.S. 52 (1976), and Planned Parenthood v. Casey, 505 U.S. 833 (1992), held such requirements unconstitutional under the federal Constitution. Even after Dobbs, no Wisconsin legislator has introduced a spousal-consent bill.

Legal analysis

Not applicable. Wisconsin has not enacted and does not currently have a spousal consent or notice statute.

Legal analysis

Wis. Stat. § 253.107(5)(a)2 (20-week ban): '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.' Wis. Stat. § 253.105(4)(a)3 (medication abortion): similar provision. Wis. Stat. § 253.095(4)(a)2 (admitting privileges, enjoined): 'The father of the aborted unborn child or the unborn child that is attempted to be aborted.' Wis. Stat. § 895.038 (partial-birth abortion civil liability): 'The father of the child.' These provisions grant civil standing but no injunctive or veto power. Wisconsin courts have not addressed whether a father can seek an injunction to stop an impending abortion.

Legal analysis

Wis. Stat. § 939.75 defines 'unborn child' as 'any individual of the human species from fertilization until birth that is gestating inside a woman.' Section 939.75(2)(b) creates a comprehensive set of exceptions to the fetal-homicide provisions (§§ 940.01(1)(b), 940.02(1m), 940.05, 940.06, 940.08, 940.09, 940.10, 940.23, 940.24, 940.25): 1. Acts committed during an induced abortion (this does not limit the applicability of the abortion-specific statutes §§ 940.04, 940.13, 940.15, 940.16); 2. Acts in accordance with usual and customary standards of medical practice during diagnostic testing or therapeutic treatment by a physician; 2h. Acts by a health care provider in accordance with a pregnant woman's power of attorney for health care; 3. Acts by the pregnant woman herself that cause death of or harm to her unborn child; 4. Prescription or use of birth control. The Wisconsin Court of Appeals upheld the fetal-homicide law against an equal-protection challenge in State v. Benson, 2012 WI App 101, reasoning that a pregnant woman is not similarly situated to a third party.

Legal analysis

Wisconsin's general wrongful-death statute, § 895.04, allows a personal representative or certain relatives to bring an action for death caused by a wrongful act. It does not textually address whether an unborn child qualifies as a 'deceased person.' Wisconsin case law is sparse; the Wisconsin Supreme Court has not resolved the question. The specific partial-birth abortion civil liability provision (§ 895.038) provides an independent cause of action to 'the father of the child' and, if performed on a minor, 'the parent of the minor,' but this is specific to that procedure. The fetal-homicide criminal statute (§ 939.75) treats the unborn child as a potential victim from fertilization, which could influence a court's analysis of civil wrongful death. Some states recognize wrongful-death claims for viable fetuses; fewer recognize them from conception. Wisconsin's position is unadjudicated.

Legal analysis

Personhood or human-being language appears in several Wisconsin statutes. § 939.75(1): 'unborn child means any individual of the human species from fertilization until birth.' § 20.927(1g): 'unborn child means a human being from the time of conception until it is born alive.' § 940.16(1)(a): 'Child means a human being from the time of fertilization until it is completely delivered from a pregnant woman.' The Wisconsin Constitution, Article I, § 1, provides: 'All people are born equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness.' No Wisconsin court has interpreted this language to create fetal personhood for abortion purposes.

Legal analysis

Wis. Stat. § 253.105(2) requires: (a) a physical exam performed by the prescribing physician before the informed-consent process, and (b) the physician to be 'physically present in the room when the drug is given to the woman.' These requirements are incompatible with any telehealth or telemedicine model. The informed-consent and counseling requirements in § 253.10(3) also presuppose in-person interaction with a physician. Wisconsin has not enacted any law explicitly authorizing or regulating the use of telehealth for abortion — the statutory scheme implicitly forbids it by mandating physical presence. Out-of-state shield-law providers are not subject to Wisconsin's physician-only or in-person requirements, and they mail pills into Wisconsin under their own states' legal protections.

Legal analysis

No Wisconsin statute criminalizes or restricts travel for abortion. No Wisconsin court has addressed the question. The U.S. Constitution's right to travel, recognized in cases such as Saenz v. Roe, 526 U.S. 489 (1999), would provide a strong constitutional defense against any such restriction. Under general principles of state sovereignty, Wisconsin does not purport to regulate conduct occurring entirely in another state.

Legal analysis

Wisconsin has no statutory equivalent to the shield laws enacted by states like Massachusetts (Mass. Gen. Laws ch. 147, § 60), New York (N.Y. Pub. Health Law § 2599-aa), or Illinois (775 ILCS 55/1). These laws typically prohibit state officials from cooperating with out-of-state subpoenas or extradition requests related to lawful abortion care. Wisconsin also has no law criminalizing cross-border abortion activity (contrast Idaho Code § 18-623, Tennessee's 'abortion trafficking' statute). Wisconsin's Governor is a Democrat who vetoed abortion restrictions under a previous Republican legislature, and the Wisconsin Attorney General (Democrat) has defended abortion access through litigation. However, these political positions are not codified in shield-law statutes.

Legal analysis

Wis. Stat. § 20.927(1m) prohibits the use of state, local, or pass-through federal funds for abortion. Section 20.927(2)(a) creates an exception for abortions 'directly and medically necessary to save the life of the woman' or 'in a case of sexual assault or incest,' with a mandatory police-report prerequisite and physician-certification requirement. Section 20.927(2)(b) adds a separate state-funded exception for abortions where 'due to a medical condition existing prior to the abortion, the physician determines that the abortion is directly and medically necessary to prevent grave, long-lasting physical health damage to the woman,' also with a physician-certification requirement. Section 20.927(3) clarifies the prohibition does not apply to 'the prescription of a drug or the insertion of a device to prevent the implantation of the fertilized ovum' (contraception exclusion). There is no judicial order requiring broader Medicaid coverage. Per OAG 1-95, the funding restriction does not apply to Public Employee Trust Fund monies used to fund state employee insurance plans.

Legal analysis

Wis. Stat. § 632.8985 generally prohibits health insurance plans that provide maternity coverage from covering abortion except through an optional separate rider for which an additional premium is paid. However, this statute applies only to 'plans' within the meaning of Wisconsin's insurance code; self-funded ERISA plans are exempt under federal preemption. The applicability to ACA exchange plans is discussed below. The OAG 1-95 opinion clarified that the Public Employee Trust Fund is not subject to § 20.927's funding prohibition, allowing state employee plans to offer broader coverage.

Legal analysis

Under the ACA, states may opt out of requiring abortion coverage in qualified health plans. Wisconsin has opted out, meaning exchange plans may exclude abortion coverage and are subject to state-law restrictions including § 632.8985 (the rider requirement). The federal Hyde Amendment restrictions apply to any federal subsidies or tax credits used for exchange plans.

Legal analysis

Wis. Stat. § 20.927 prohibits state and local public funds from being authorized for or paid to any physician, hospital, clinic, or medical facility for the performance of an abortion, with the narrow exceptions at § 20.927(2). Wis. Stat. § 20.9275 further prohibits state and local funds, and federal funds passing through the state treasury, from being granted to organizations that provide abortion services. Wisconsin has also enacted budget provisions prioritizing non-abortion-providing entities for family-planning grants.