2019 AB 179 ProvisionsCurrent StatutesComments
253.109 (1) DEFINITIONS.

(a)  “Abortion” has the meaning given in s. 253.10 (2) (a).

 

 

 

 

(1) (b)  “Born alive” means undergoes a live birth, as defined in s. 990.001 (19j).

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

253.10 (2) (a)  “Abortion” means the 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.

 

Wis. Stat. 990.001 (17) LIVE BIRTH OR CIRCUMSTANCE OF BEING BORN ALIVE.

 

(a)  An individual who undergoes a live birth is born alive.

 

(b)  If a statute or rule refers to a live birth or to the circumstance in which an individual is born alive, the statute or rule shall be construed so that whoever undergoes a live birth as the result of an abortion, as defined in s. 253.10 (2) (a), has the same legal status and legal rights as a human being at any point after the human being undergoes a live birth as the result of natural or induced labor or a cesarean section.

 

(c)  Paragraphs (a) and (b) may not be construed to affirm, deny, expand, or contract a legal status or legal right that is applicable to a human being at any point before the human being undergoes a live birth.

 

Wis. Stat. 990.01 (19j) LIVE BIRTH. 

(a)  In this subsection, “breathes” means draws air into and expels it out of the lungs one or more times.

 

(b)  “Live birth” means the complete expulsion or extraction from his or her mother, of a human being, at any stage of development, who, after the expulsion or extraction, breathes or has a beating heart, pulsation of the umbilical cord, or definite movement of voluntary muscles, regardless of whether the umbilical cord has been cut, and regardless of whether the expulsion or extraction occurs as a result of natural or induced labor, a cesarean section, or an abortion, as defined in s. 253.10 (2) (a).

2019 AB 179 cross references the definition of abortion used in the voluntary and informed consent statute (current law s. 253.10 (2) (a)) and in various other places
253.109 (2)  REQUIREMENTS OF HEALTH CARE PROVIDERS.  Any health care provider present at the time an abortion or attempted abortion results in a child born alive shall do all of the following:

 

(a)  Exercise the same degree of professional skill, care, and diligence to preserve the life and health of the child as a reasonably diligent and conscientious health care provider would render to any other child born alive at the same gestational age.

 

(b)  Observing the exercise of skill, care, and diligence required under par. (a), ensure that the child born alive is immediately transported and admitted to a hospital.

 

(4)  CRIMINAL PENALTY; NO PENALTY FOR MOTHER.

 

(a)  Any person who violates sub. (2) is guilty of a Class H felony.

 

(b)  The mother of a child born alive under circumstances described in sub. (2) may not be prosecuted for a violation of this section, an attempt to violate this section, or a conspiracy to violate this section.

 There is no current law specification on the action required in the circumstance an abortion attempt results in a child born alive.  There is a current law statute, s. 940.295, that criminalizes abuse or neglect of a patient or resident by a caregiver.  However, it is unclear whether the child born alive would be a patient since the requested procedure, the abortion, was intended to result in the child not existing.  Also, with penalty enhancers for adults at risk and elders at risk, it seems 940.295 was not intended to deal with the circumstance addressed in AB 179.

 

In abortion related statutes the mother is often exempt from penalty (ss. 253.10 (5), 253.105 (3), 253.107 (4), and s. 940.13), though AB 179 relates to a child born alive and not the abortion.

253.109 (3)  REPORTING OF VIOLATIONS.  A health care provider or an employee of a hospital, physician’s office, or clinic where abortions are performed or induced who has knowledge of a failure to comply with a requirement under sub. (2) shall immediately report the failure to an appropriate law enforcement agency. There are statutes requiring the reporting of conduct perpetrated or omitted by a health care provider.  See, e.g., s. 50.09 (6).  There is no current law provision requiring reporting of conduct by a health care provider for conduct toward a child born alive since there is no current statute requiring such conduct.
253.109 (5)  CIVIL REMEDIES; INJUNCTIONS.

 

(a)  A woman upon whom an abortion was performed, induced, or attempted may bring a claim for damages, including damages for personal injury and emotional and psychological distress, against a person who violates or attempts to violate sub. (2).  A woman who brings a claim under this paragraph may be awarded objectively verifiable monetary damages for all injuries and damages equal to 3 times the cost of the abortion or attempted abortion.

 

(b)  A woman who has been awarded damages under par. (a) shall, in addition to any damages awarded under par. (a), be entitled to punitive damages for a violation that satisfies a standard under s. 895.043 (3).

 

(c) 1.  Notwithstanding s. 814.04 (1), a woman who recovers damages under par. (a) or (b) may also recover reasonable attorney fees incurred in connection with the action.

 

2.  If a defendant prevails in an action under par. (a) and the court finds the action was frivolous or brought in bad faith, notwithstanding s. 814.04 (1), the defendant may recover reasonable attorney fees incurred in connection with defending the action.

 

(d)  A contract is not a defense to an action under this subsection.

 

(e)  Nothing in this subsection limits the common law rights of a person that are not in conflict with sub. (2).

 

(f)  A prosecuting attorney with appropriate jurisdiction or the department of justice may bring an action for injunctive relief against a person who has intentionally or recklessly violated this section.

 

(6)  ENFORCEMENT AUTHORITY.  The department of justice or the district attorney may investigate any allegation of or institute, manage, control, and direct, in the proper county, any prosecution for a violation of this section.  For this purpose, the department of justice shall have and exercise all powers conferred upon district attorneys in such cases.

 

(7)  CONFIDENTIALITY IN COURT PROCEEDINGS.

(a)  In every proceeding brought under this section, the court, upon motion or sua sponte, shall rule whether the identity of any woman upon whom an abortion was performed or induced or attempted to be performed or induced shall be kept confidential unless the woman waives confidentiality.  If the court determines that a woman’s identity should be kept confidential, the court shall issue orders to the parties, witnesses, and counsel and shall direct the sealing of the record and exclusion of individuals from courtrooms or hearing rooms to the extent necessary to safeguard the woman’s identity from public disclosure.  If the court issues an order to keep a woman’s identity confidential, the court shall provide written findings explaining why the woman’s identity should be kept confidential, why the order is essential to that end, how the order is narrowly tailored to its purpose, and why no reasonable less restrictive alternative exists.

 

(b)  Any person, except for a public official, who brings an action under this section shall do so under a pseudonym unless the person obtains the written consent of the woman upon whom an abortion was performed or induced, or attempted to be performed or induced, in violation of this section.

 

(c)  This section may not be construed to allow the identity of a plaintiff or a witness to be concealed from the defendant.

 

(8)  CONSTRUCTION.  Nothing in this section may be construed as creating or

recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.

 The civil action, confidentiality, and construction provisions are common in abortion related statutes (sections 253.10 & 253.107, for example). The enforcement authority in subsection (6) is present to ensure the Department of Justice (and district attorneys) knows it is authorized to enforce the provisions.
940.01 First-degree intentional homicide.

 

(1) OFFENSES

 

(c)  Except as provided in sub. (2), whoever causes the death of a child born alive under circumstances described in s. 253.109 (2) with intent to kill that child is guilty of a Class A felony.  The mother of a child born alive under circumstances described in s. 253.109 (2) may not be prosecuted for a violation of this paragraph, an attempt to violate this paragraph, or a conspiracy to violate this paragraph.

940.01 First-degree intentional homicide. 

 

(1) OFFENSES.

 

(a)  Except as provided in sub. (2), whoever causes the death of another human being with intent to kill that person or another is guilty of a Class A felony.

 

 

AB 179 deals specifically with the intention to kill a child born alive under circumstances described in s. 253.109 (2).  Those circumstances are when, in the presence of a health care provider, an abortion or attempted abortions results in a child born alive.  The main difference between (1) (c) and (1) (a) is the reference back to the circumstances in 253.109 (2). AB 179 exempts the mother from prosecution from this paragraph (c). AB 179 does not affect the ability of a district attorney to prosecute under (1) (a) or another homicide statute for applicable conduct.

 

 

 

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