Wisconsin Abortion Laws: Understanding The Current Landscape

Abortion laws in Wisconsin have been a topic of debate and legal challenges in recent years, with the state's abortion ban being reinstated after the overturning of Roe v. Wade in 2022. Wisconsin's 1849 criminal abortion ban, section 940.04 of the Wisconsin statutes, makes it a felony for anyone other than the pregnant person to provide an abortion, with a narrow exception for preserving the life of the pregnant person. The state's abortion laws have faced legal challenges, with courts providing differing interpretations. While abortion services have resumed in some parts of Wisconsin, the debate continues, with ongoing litigation and protests from both supporters and opponents of abortion rights.

Abortion laws in Wisconsin prior to Roe v. Wade

In 1849, the Wisconsin Legislature passed a law that criminalized abortion, making it a felony for a doctor to perform an abortion on a woman, regardless of the circumstances of her pregnancy, including pregnancy as a result of rape or incest. The only exception to this law was if the woman's life was endangered by the pregnancy. This law was enforced for over 120 years, with Wisconsin prosecutors charging and juries convicting doctors for performing abortions. The Wisconsin Supreme Court also upheld this law, deciding that "both the quick child and the mother are human beings; hence to unlawfully kill either constitutes manslaughter."

In 1950, the state legislature passed another law stating that a woman who had an abortion or actively sought to have an abortion, regardless of whether she went through with it, was guilty of a criminal offense. This meant that women who underwent abortions could also be charged and prosecuted.

It wasn't until 1970 that a federal court struck down part of Wisconsin's abortion ban, specifically the section that prohibited anyone other than the mother from intentionally destroying the life of an "unborn child." This decision, known as Babbitz v. McCann, held that the U.S. Constitution prohibits a state from depriving a woman of her private decision to bear a child. However, the court left intact a separate statute prohibiting abortion of a "quick child," which was generally considered to be after 16 weeks of gestation.

As a result of these laws, abortion was largely inaccessible and highly regulated in Wisconsin prior to the Roe v. Wade decision in 1973.

The current legal status of abortion in Wisconsin

Wisconsin's 1849 criminal abortion ban makes it a felony for anyone other than the pregnant person to provide an abortion. This law effectively bans abortion in Wisconsin at any point in pregnancy with no exceptions for rape, incest, or the health of the pregnant person. The only exception to this criminal abortion ban is if an abortion is necessary to preserve the life of the pregnant person, as determined by their attending physician.

The enforceability of the 1849 law is currently being disputed and considered by state courts. In 2023, a Dane County Wisconsin circuit court judge ruled that the 1849 law does not ban consensual abortions but only prohibits foeticide. Planned Parenthood of Wisconsin resumed abortion services in Madison and Milwaukee in September 2023 and later in Sheboygan in December 2023.

Wisconsin law requires that a woman meet with a counselor and a physician before she can have an abortion. After this counseling appointment, the woman must wait at least 24 hours before she can return for the abortion procedure. Young women under the age of 18 are required to have an adult relative (over the age of 25) with them. Abortion can be performed up to 21 or 22 weeks of pregnancy.

The impact of the Supreme Court's overturning of Roe v. Wade

The Supreme Court's overturning of Roe v. Wade in June 2022 had a significant impact on abortion laws and access in Wisconsin. Here are some key points outlining the effects of this decision:

Legal Status of Abortion in Wisconsin:

• The Supreme Court's decision removed the constitutional right to abortion, and Wisconsin's abortion laws became disputed.
• Abortion opponents in Wisconsin cited an 1849 law that banned the procedure except when the mother's life was in danger. However, lower courts argued that this law only applied to infanticide and not consensual abortions, creating uncertainty about the enforceability of the law.

Changes in Abortion Services:

Planned Parenthood of Wisconsin resumed abortion services in Madison and Milwaukee in September 2023 and later in Sheboygan in December 2023.

Political and Social Impact:

• The overturning of Roe v. Wade sparked protests and marches across Wisconsin, including in major cities like Madison, Milwaukee, and Green Bay.
• The decision also fueled the ongoing abortion debate in the state, with organizations like Wisconsin Alliance for Reproductive Health advocating for abortion rights and groups like Pro-Life Wisconsin seeking to restrict abortion access.

Legal Challenges and Court Rulings:

• A Dane County circuit court judge in Wisconsin ruled in 2023 that the 1849 law does not ban consensual abortions but prohibits foeticide.
• The state courts are still considering the enforceability of the 1849 law and abortion remains a highly contested issue in Wisconsin politics.

Historical Context:

• Wisconsin has a history of abortion restrictions, and in 1950, the state passed a law criminalizing abortion, making it a criminal offense for a woman to have or seek an abortion.
• In the years leading up to the Roe v. Wade decision, there were efforts to challenge abortion restrictions in Wisconsin, with a U.S. district judge granting a declaratory judgment in 1970 stating that the state's abortion law was unconstitutionally vague.

Impact on Marginalized Communities:

The overturning of Roe v. Wade particularly affects marginalized communities in Wisconsin, including people with low incomes, Black and Brown communities, young people, and those without insurance or unable to use their insurance for abortion care.

The history of abortion laws in Wisconsin

However, in 1858, the Wisconsin Legislature amended the law, removing the word "quick" and thereby outlawing abortion at any point during pregnancy. The state's new statutes imposed penalties on any woman who sought to "procure a miscarriage," with punishments of up to six months' imprisonment or a fine of up to $500. The 1878 statutes later softened these penalties, reducing the maximum prison term and lowering the maximum fine to $100.

In the 1940s, the Legislature once again increased the fines and prison terms for abortion. By 1953, a distinction was made between the penalties for the abortion of an "unborn child" and an "unborn quick child." Two years later, in 1955, the maximum penalty for abortion was set at a $5,000 fine and three years in prison.

During the 1970s, courts began to relax abortion restrictions. In 1970, a U.S. District Court ruled in favor of a physician who challenged the constitutionality of Wisconsin's abortion statutes. The landmark Roe v. Wade ruling by the U.S. Supreme Court in 1973 further rendered any statutes banning abortion in Wisconsin unenforceable. Despite this, the original law remained in place, and the Legislature continued to impose additional restrictions on abortion through the 2020s.

In the years following Roe v. Wade, Wisconsin introduced various restrictions, including "conscience protections" for medical employees, prohibiting public funding for abortions except in specific cases, and preventing non-physicians from performing abortions. In 2011, budget provisions barred the University of Wisconsin from performing abortions in its hospitals and from paying medical students to learn the procedure. These laws showcase the evolving nature of abortion legislation in Wisconsin, reflecting societal and legal shifts over time.

Abortion services in Wisconsin

Abortion laws in Wisconsin are currently in dispute, with elective abortions under question following the overturning of Roe v. Wade in June 2022. Wisconsin's 1849 criminal abortion ban, section 940.04 of the Wisconsin statutes, makes it a felony for anyone other than the pregnant person to provide an abortion. This law bans abortion at any point in the pregnancy with no exceptions for rape, incest, or the health of the pregnant person. However, lower courts have argued that this law only applies to infanticide and not consensual abortions, and the enforceability of the law is currently being considered by state courts.

In the meantime, abortion services are available in Wisconsin, but with certain restrictions. Here is an overview of abortion services in the state:

Where to Get Abortion Services in Wisconsin

Planned Parenthood of Wisconsin provides abortion services in Madison, Milwaukee, and Sheboygan. They resumed these services on September 18, 2023, in Madison and Milwaukee and on December 28, 2023, in Sheboygan.

Another option is Affiliated Medical Services (AMS), located at 1428 N. Farwell Ave. in Milwaukee, WI. AMS provides abortion care up to 21 weeks and offers both surgical abortions and the abortion pill.

Requirements and Restrictions for Abortion Services in Wisconsin

Wisconsin law requires that a woman meet with a counsellor and a physician before having an abortion. There is a mandatory waiting period of at least 24 hours after the counselling appointment before the abortion procedure can be performed. For minors under the age of 18, an adult relative over the age of 25 must be present.

Additionally, abortion providers in Wisconsin must have admitting privileges at a hospital within 30 miles of the location where the abortion is performed.

Financial Assistance for Abortion Services in Wisconsin

Both Planned Parenthood and AMS offer financial assistance for abortion services. They can connect individuals with supportive organizations that may help cover some of the costs if certain qualifications are met.

Protests and Crisis Pregnancy Centers

It is important to note that protests outside abortion clinics are common in Wisconsin. Additionally, there are "crisis pregnancy centers" that aim to keep women from having abortions. These centres may offer "free pregnancy tests and ultrasounds" to lure women into their facilities. One such centre, the Women's Care Center, is located across the street from AMS in Milwaukee.

History of Abortion Laws in Wisconsin

Wisconsin has a history of restrictive abortion laws. In 1950, a law was passed that made it a criminal offence for a woman to have or seek an abortion, regardless of whether she went through with the procedure. In 1985, Wisconsin Stat. § 940.15 made abortion a crime only after viability, allowing exceptions to preserve the life or health of the woman.

In recent years, there have been efforts to further restrict abortion access in Wisconsin, with five bills introduced in 2019 seeking to outlaw abortion in the state. Governor Tony Evers vetoed four Republican-passed bills that would have limited abortion access, including a ban on all abortions based on the race, sex, or genetic anomaly of the fetus.

The legal status of abortion in Wisconsin remains uncertain as the state courts continue to debate the enforceability of the 1849 criminal abortion ban.

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