As every licensed attorney in Wisconsin is likely aware, on June 24, 2022, the U.S. Supreme Court ruled on the case Dobbs v. Jackson Women’s Health Organization and overturned the constitutional right to an abortion.

As such, a woman’s ability to obtain an abortion now falls in the hands of each individual state. Abortion law currently varies from state to state, as does the enforcement (or lack thereof) of abortion-related statutes.

While the scope and sophistication of state abortion restrictions (and permissions) vary, Wisconsinites are in the particularly challenging position of interpreting an abortion law originally codified in the mid-1800s, which effectively bans all abortions "unless necessary to save the life of the mother." This law does not contemplate modern medical nuances (e.g., ectopic pregnancies) and leaves health care providers with little guidance as to what is "necessary to protect the life of the mother."

What Does the Law Say?

The law now governing abortion in Wisconsin is Wis. Stat. section 940.04, which was dormant since the Supreme court’s decision in Roe v. Wade. This mid-1800s statute bans abortions in almost all cases except when necessary to save the life of the mother.

There are a few key elements of this very short statute to consider:

• The restriction applies to any person, other than the mother, who intentionally destroys the life of an unborn child. “Unborn child” means a human being from the time of conception until it is born alive.

• The restriction does not apply to a therapeutic abortion that is performed by a physician and is necessary to save the life of the mother and unless an emergency prevents, is performed in a licensed maternity hospital.

As highlighted above, there are a few major considerations:

• The law makes it clear that the abortion restriction does not apply to the mother. Therefore, the responsibility of determining whether or not an abortion is necessary and therefore legal in Wisconsin falls on the physician performing the abortion.

• The law is intent-based, meaning that liability would not reasonably attach to a physician or other health care provider who inadvertently terminates a pregnancy as part of another medical procedure.

• The law protects an "unborn child," which is defined as a "human being from the time of conception until it is born alive." While the statute does not directly address ectopic pregnancies or situations where the fetus may already be dead in the womb, there is some case law which helps clarify the issue. In State v. Mac Gresens, the 1968 Wisconsin Supreme Court analyzed section 940.04 and held “the three elements of the crime which must be proved beyond a reasonable doubt, namely, a living unborn child, a destruction and the intent to destroy.”¹ Per the Court's language in this case, there is a reasonable position that a fetus that dies in the womb no longer constitutes an "unborn child" and therefore may be removed without any section 940.04 restrictions.

• The law's only exception allows for a therapeutic abortion performed by a physician "necessary to save the life of the mother." The law does not define situations which may fall within this exception. As such, the physician ordering or performing the abortion should create thorough and detailed medical records supporting their medical determination.

• Lastly, the law provides that a therapeutic abortion must be performed in a licensed maternity hospital "unless an emergency prevents." While Wisconsin does not currently have "licensed maternity hospitals," the most reasonable reading of this language suggests that nonemergent therapeutic abortions should be performed in a hospital setting with access to obstetrics and gynecological providers and services. This subsection of the statute also allows an abortion to be performed in a nonhospital setting if there is an emergency medical condition preventing the patient from reaching a proper hospital setting.

How Has the Law Been Enforced?

Wisconsin’s statute imposes a strict penalty: any person other than the mother who performs an abortion is guilty of a Class H felony. Additionally, any person who ends the life of the mother by “an act done with intent to destroy the life of an unborn child” or any person who destroys the life of an unborn "quick" child² is guilty of a Class E felony.

In order to prosecute an individual under section 904.04, a Wisconsin prosecutor would have to file criminal charges against the individual who performed an abortion. While Wisconsin’s Attorney General Joshua Kaul³ has said that he will not use the Wisconsin Department of Justice’s resources to either investigate or prosecute anyone who violates the abortion statute, local prosecutors may still opt to press criminal charges on their own volition.

While criminal cases require a high burden of proof, the highly politicized nature of this issue will likely result in erratic enforcement of the law, largely dependent on the local prosecutor's opinion of the law. However, the statute of limitations in Wisconsin for most felonies is six years, so providers should follow the statute and record necessity of all abortions, as prosecutors can and will change throughout election cycles.

As of the date of this writing, there have not been any publicized instances of charges brought against an individual for a violation of section 904.04. Further, Wisconsin Gov. Tony Evers has indicated that he will grant clemency for any physicians convicted under section 904.04 – though physicians should note that this clemency power does not extend to the arrest, charging, and trial processes associated with a conviction under section 904.04.

What Should Health Care Providers Do?

The Wisconsin abortion law is ambiguous, and currently very little guidance is available. The Wisconsin legislature has not yet addressed out-of-state travel, nor has it addressed whether providers will have their license suspended or revoked if they provide an abortion. Wisconsin abortion providers should remain abreast of any new guidance, prosecutorial decisions, and ongoing litigation related to this law.

Absent any additional clarity, Wisconsin health care providers should implement processes to thoroughly document the clinical indications used to determine that a therapeutic abortion is medically necessary to save the life of the mother. Such providers may also consider having a second physician countersign the order to bolster the medical record.

In essence, if a prosecutor seeks to press charges against a physician for performing an unlawful abortion, that physician will need to establish before a jury that their decision was medically necessary and reasonable. The State would likely bring in physician experts to challenge that determination, so physicians should again ensure that their medical records are thorough and detailed so as to support their determination.

What's Next?

Given the divided nature of the Wisconsin government after the November 2022 elections, meaningful legislation overturning section 904.04 is highly unlikely.

However, there is a small chance that the government may enact minor changes and clarifications to the law, perhaps aligning it with other restrictive states that codify explicit exceptions for ectopic pregnancies and fetuses that die in the womb.⁴

Additionally, in June 2022, Attorney General Kaul filed a lawsuit in Dane County Circuit Court⁵ seeking a decision that rendered the statute unenforceable, commenting, “with this lawsuit, we are fighting to restore reproductive freedom in Wisconsin.” The complaint argues that Wisconsin has two abortion-related statutes that are in conflict with one another if both are applied. The complaint further argues that section 940.04 has been superseded by subsequent Wisconsin law that created specific parameters around legal abortion, and therefore is unenforceable. The case will likely end up before Wisconsin’s Supreme Court, but until then, the statute is still in effect.

This article was originally published on the State Bar of Wisconsin’s Health Law Blog. Visit the State Bar sections or the Health Law Section webpages to learn more about the benefits of section membership.

Endnotes

¹ State v. Mac Gresens, 161 N.W.2d 245, 246 (1968) (emphasis added).

² There is no statutory definition of "quick child" but the term is generally understood to mean a fetus capable of movement in the womb.

³ Attorney General Kaul won reelection in November 2022, which means he will likely remain in office until January 2027.

⁴ See Tex. Health & Safety Code Ann. § 245.002(1), which provides: “Abortion” means the act of using or prescribing an instrument, a drug, a medicine, or any other substance, device, or means with the intent to cause the death of an unborn child of a woman known to be pregnant. The term does not include birth control devices or oral contraceptives. An act is not an abortion if the act is done with the intent to:

(A) save the life or preserve the health of an unborn child;

(B) remove a dead, unborn child whose death was caused by spontaneous abortion; or

(C) remove an ectopic pregnancy.

⁵ See the original complaint.