Wisconsin's Abortion Law: Understanding The Legal Landscape

what is wi abortion law

Abortion laws in Wisconsin have been a topic of debate and legal challenges in recent years, with the state's abortion ban dating back to 1849. The law makes it a felony for anyone other than the pregnant person to provide an abortion, effectively banning abortion at any stage of pregnancy without exceptions for rape, incest, or the health of the pregnant person. However, lower courts have argued that the law only applies to infanticide and not consensual abortions, and the enforceability of the law is currently being considered by state courts. In 2023, a circuit court judge in Dane County ruled that the 1849 law does not ban consensual abortions but prohibits foeticide.

Wisconsin Republicans approved a bill banning abortions after 14 weeks of pregnancy, which sparked controversy and debate in the state. The bill included a binding statewide referendum, giving voters the power to decide on the 14-week prohibition. While supporters of the bill argued that it could save more fetuses, opponents criticised it as government overreach, emphasising the importance of women's reproductive choice.

Characteristics Values
Abortion law Elective abortions are under dispute after the overturning of Roe v. Wade by the Supreme Court of the United States on June 24, 2022
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
Exceptions The law does not apply if an abortion is necessary to preserve the life of the pregnant person as determined by their physician
Age limit Abortions cannot be performed after 21 weeks of pregnancy
Waiting period A woman must wait at least 24 hours after the counseling appointment before she can return for the abortion procedure
Ultrasound requirement The pregnant woman is required to obtain an ultrasound
Admitting privileges requirement No physician may perform an abortion unless they have admitting privileges in a hospital within 30 miles of the location where the abortion is to be performed

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Wisconsin's criminal abortion ban

The law does not apply to a pregnant person accessing abortion care or performing a self-managed abortion. However, Wisconsin law requires that a woman meet with a counsellor and a physician before she can have an abortion. After this counselling 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.

In 2023, a Dane County Wisconsin circuit court judge ruled that the 1849 law does not ban consensual abortions but only prohibits foeticide. Abortion in Wisconsin has been legal since September 18, 2023, and is performed in Madison, Milwaukee, and Sheboygan through 22 weeks of gestation. However, elective abortions in Wisconsin are under dispute after the overturning of Roe v. Wade by the Supreme Court of the United States on June 24, 2022.

The enforceability of the 1849 law is currently being considered by state courts, with Attorney General Josh Kaul disputing its enforceability and arguing that more recent changes to abortion law have effectively repealed it. Planned Parenthood of Wisconsin resumed abortion services in Madison and Milwaukee on September 18, 2023, and later in Sheboygan on December 28, 2023.

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The enforceability of the law

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

The law does not apply to a pregnant person accessing abortion care or performing a self-managed abortion. It also does not apply to the pregnant person's attending physician.

The Attorney General of Wisconsin, Josh Kaul, has disputed the enforceability of the old law, arguing that more recent changes to abortion law have effectively repealed it. In 2023, a Dane County Wisconsin circuit court judge ruled that the 1849 law does not ban consensual abortions but only prohibits foeticide.

There are two paths to restore access to abortion care in Wisconsin: legislation or the courts. If the Wisconsin State Legislature repealed the ban, abortion care providers could immediately resume services. The other way to restore access would be for a state or federal court to rule that the criminal abortion ban is not enforceable. This litigation is ongoing, and the court has not yet ruled on whether the law is enforceable.

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Abortion services in Wisconsin

Affiliated Medical Services (AMS) in Milwaukee provides abortions up to 21 weeks into the pregnancy and involves the patient's support person in the abortion process. They offer surgical abortions and the abortion pill. Planned Parenthood has three locations providing abortion care in Wisconsin: the Milwaukee Water Street Health Center, Madison East Health Center, and Sheboygan Health Center. The Milwaukee Water Street and Madison East Centers offer in-office abortion procedures or medication abortion, while Sheboygan offers medication abortion only.

Abortion in Wisconsin has been the subject of much dispute. In 1849, the state legislature passed a law that criminalized abortion, making it a felony for anyone other than the pregnant person to provide an abortion. This law effectively banned abortion in Wisconsin at any point in the pregnancy, with the only exception being if the pregnant person's life was in danger. In 1950, a further law was passed stating that a woman who had an abortion or sought to have an abortion was guilty of a criminal offense. In 1970, a U.S. district judge granted a declaratory judgment stating that Wisconsin's abortion law was unconstitutionally vague, and in November of that year, a three-judge panel effectively made abortion legal in Wisconsin. However, in 2022, the U.S. Supreme Court overturned the Roe v. Wade decision, and abortion providers in Wisconsin immediately ceased elective abortions, fearing prosecution under the 1849 law. A circuit court judge ruled in 2023 that the 1849 law does not ban consensual abortions but only prohibits foeticide.

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The impact of Roe v. Wade

Wisconsin's abortion laws have a direct impact on the availability and accessibility of abortion services for its residents, particularly those from marginalized communities. The state's criminal abortion ban, which dates back to 1849, effectively prohibits anyone other than the pregnant person from providing an abortion. This law, outlined in section 940.04 of the Wisconsin statutes, classifies the act as a felony, with no exceptions for rape, incest, or the health of the pregnant person. The only exception to this ban is when an abortion is deemed necessary to preserve the life of the pregnant person, as determined by their physician.

Legislative and Legal Landscape:

  • The overturning of Roe v. Wade in June 2022 allowed individual states to decide on the legal parameters surrounding abortion care. Wisconsin's criminal abortion ban was upheld, and the state legislature continues to debate and shape abortion policies.
  • The Wisconsin State Legislature has the power to repeal the ban, which would allow abortion care providers to resume their services. However, as of October 2024, this has not occurred.

Access to Abortion Care:

  • Wisconsin's abortion ban has restricted access to safe and legal abortion services within the state. This primarily affects marginalized communities, including people of color, young people, and those with low incomes or without insurance.
  • As a result, residents seeking abortions may need to travel to neighboring states like Illinois, Minnesota, or Michigan, where abortion remains legal. This creates financial and logistical challenges, particularly for those without the economic means to travel.

Healthcare Provider Impact:

  • Abortion providers in Wisconsin, such as Affiliated Medical Services, are bound by the state's laws and face limitations in offering abortion care. They must navigate legal restrictions while also ensuring patient safety and comfort.
  • Healthcare providers also play a role in assisting patients with navigating the changing legal landscape and identifying safe and legal abortion options, even if it involves traveling out of state.

Self-Managed Abortions:

Wisconsin's abortion ban does not apply to pregnant individuals seeking abortion care or performing self-managed abortions. However, accessing safe options for self-managed abortions can still be challenging.

Political and Social Activism:

The overturning of Roe v. Wade has sparked political and social activism in Wisconsin, with organizations like Planned Parenthood Advocates of Wisconsin encouraging individuals to contact state legislators, donate to abortion access funds, and participate in rallies to support abortion rights.

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Abortion rights views and activities

The Wisconsin Alliance for Reproductive Health is an organization that supports abortion rights and has been active in trying to overturn Wisconsin's 1849 abortion ban. The Executive Director, Sara Finger, has stated that Wisconsin's abortion laws are among the harshest in the nation, comparable to those of Texas.

Planned Parenthood of Wisconsin has also been active in the state, marking the 40th anniversary of Roe v. Wade in 2013 with an event titled "Our Lives. Our Stories. Our Celebration" at the Majestic Theater in Madison. In 2023, they resumed abortion services in Madison, Milwaukee, and Sheboygan.

Women from Wisconsin have participated in marches supporting abortion rights, including the #StoptheBans movement in May 2019 and rallies in 2022, 2023, and 2024 following the overturn of Roe v. Wade. These rallies have taken place in Madison, Milwaukee, Appleton, Eau Claire, Kenosha, Wausau, Marshfield, Stevens Point, Sheboygan, La Crosse, and Green Bay.

In addition, abortion clinics such as Affiliated Medical Services in Milwaukee provide abortion care up to 21 weeks, with immediate appointments available and financial assistance for those who qualify.

Frequently asked questions

Wisconsin's 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 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 physician.

The WI abortion law was first passed in 1849 and made it a felony for a doctor to perform an abortion on a woman, no matter the circumstances of her pregnancy. In 1950, the state legislature passed a law stating that a woman who had an abortion or sought to have an abortion was guilty of a criminal offense. In 1985, Wisconsin Stat. § 940.15 made abortion a crime only after viability and allowed abortion after viability if the abortion was necessary to preserve the life or health of the woman.

There are currently two paths to restore access to abortion care in Wisconsin: legislation or the courts. If the Wisconsin State Legislature repealed the ban, abortion care providers could immediately resume providing abortion care. The other way to restore access would be for a state or federal court to rule that Wisconsin's criminal abortion ban is not enforceable.

Wisconsin law requires that a woman meet with a counselor and 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. Abortions cannot be performed after 21 weeks of pregnancy.

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