Legal Brief: Wisconsin’s Law on Abortion and What Comes Next

by JOAN KORB, [email protected]

By overturning Roe v. Wade, the U.S. Supreme Court has plunged Wisconsin back into the pre–Civil War era, when abortion was illegal, and in half the country, enslavement was legal. 

States are now on their own following the high court’s June 24 decision, and the law on the books in Wisconsin dates back to 1849 – one year after Wisconsin received statehood. Those first prohibitions on abortion in the 1849 Assembly Bill 116, section 11 state:

“Every person who shall administer to any woman pregnant with a quick child, any medicine, drug, or substance whatever, or shall use or employ any instrument or other means, with intent thereby to destroy such child, unless the same shall have been necessary to preserve the life of such mother, or shall have been advised by two physicians to be necessary for such purpose, shall, in case the death of such child or of such mother be thereby produced, be deemed guilty of manslaughter in the second degree.”

In the original 1849 statute, the prohibition applied only to a “quick” child. “Quickening,” according to the Mayo Clinic, is when the pregnant person feels the fetus move in the uterus. This typically occurs 16-20 weeks into pregnancy, though some people feel it sooner (women who have had a prior child) and some later (first pregnancies).

The Wisconsin Legislature amended the Wisconsin abortion statute in 1858 to remove “quick” from the statute, effectively prohibiting abortion at any stage of pregnancy and also creating penalties for any woman who intentionally attempted to “procure a miscarriage” (i.e., obtain an abortion), according to the Legislative Reference Bureau Reports, Volume 6, Number 4.

Today, abortion is illegal in Wisconsin except as applied to “therapeutic” abortions which must be performed by a physician; is necessary to save the life of the mother; and, unless an emergency prevents it, is performed in a licensed maternity hospital – requirements originally lobbied for by the powerful medical and hospital lobbies.

There are no exceptions to the abortion ban in Wisconsin for pregnancy that results from a brutal rape, no matter how heinous; there is no exception when a father impregnates his 10-year-old daughter; and there is no exception when a fetus is so deformed that life outside the womb is impossible or short lived and full of suffering.

There is no consideration that pregnancy and childbirth still endanger the lives of women. Statistics by the Centers for Disease Control and Prevention indicate that 700 women die each year as a result of pregnancy or delivery complications, 70% of those between the ages of 20 and 34. The five leading causes of pregnancy-related deaths, in order, are cardiovascular conditions, hemorrhage, infection, embolism and cardiomyopathy. In Wisconsin, women must now leave the state if they elect not to continue a pregnancy because of the inherent health risks.

The prosecution of future abortion providers – because penalties apply only to persons other than the mother – will lie with local district attorneys, who will use their prosecutorial discretion to review any potential referral of an alleged violation of the ban. 

With this uncertainty in the application of Wisconsin’s abortion ban, how will the political and religious views of a prosecutor influence her or his judgment? Will the mental health of a pregnant person trigger an exemption to the ban? Will a publicity-seeking prosecutor want to be the first to prosecute a physician who performs a clinical procedure incompatible with pregnancy because a disgruntled former significant other reports the medical procedure as an abortion? Will a zealous Wisconsin prosecutor attempt to prosecute an out-of-state medical provider for sending abortion pills that were prescribed and provided via the internet and mail? 

It is unclear how statutes created under Roe v. Wade will be applied by prosecutors and interpreted by judges, and there are inconsistencies in Wisconsin’s abortion laws. Which statute will the prosecutor use? 

Penalties impose three and a half years of imprisonment for performing an abortion on a viable fetus under Section 940.15 of the Wisconsin Statutes, but Section 940.04 imposes 15 years of imprisonment for “intentionally destroying the life of an unborn quick child.” A fetus is viable when able to survive outside the womb – a later stage of pregnancy than quickening – usually at 23 or 24 weeks. 

In a poll of registered voters, nearly 60% of Wisconsinites, according to a June 2022 Marquette University poll, support legalizing abortion in all or most circumstances. About one-third of those polled want abortion to be illegal in all or most circumstances. 

One thing may be certain among all the uncertainties: The law on abortion in Wisconsin is going to change – by legislation, by court decision or by a combination of factors that are alive in a dynamic democracy.

Joan Korb is a former Door County district attorney and assistant district attorney. She lives in Egg Harbor.