Wisconsin 2023-2024 Regular Session

Wisconsin Senate Bill SB61 Compare Versions

Only one version of the bill is available at this time.

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3	3	2023 - 2024 LEGISLATURE
4	4	2023 SENATE BILL 61
5	5	February 14, 2023 - Introduced by Senators WIMBERGER, BALLWEG, BRADLEY,
6	6	FELZKOWSKI, JAGLER, JAMES, MARKLEIN, NASS, QUINN, STROEBEL and
7	7	WANGGAARD, cosponsored by Representatives ROZAR, ALLEN, BEHNKE, BROOKS,
8	8	CALLAHAN, DITTRICH, DONOVAN, EDMING, GUNDRUM, KNODL, KRUG, MOSES,
9	9	MURPHY, MURSAU, NEYLON, O'CONNOR, PENTERMAN, SCHUTT, STEFFEN, TUSLER
10	10	and ZIMMERMAN. Referred to Committee on Judiciary and Public Safety.
11	11	AN ACT to create 253.109 and 940.01 (1) (c) of the statutes; relating to:
12	12	requirements for children born alive following abortion or attempted abortion
13	13	and providing a penalty.
14	14	Analysis by the Legislative Reference Bureau
15	15	This bill requires any health care provider present at the time an abortion or
16	16	attempted abortion results in a child born alive to exercise the same degree of
17	17	professional skill, care, and diligence to preserve the life and health of the child as
18	18	a reasonably diligent and conscientious health care provider would render to any
19	19	other child born alive at the same gestational age and to ensure that the child born
20	20	alive is immediately transported and admitted to a hospital. A health care provider
21	21	or an employee of a hospital, physician's office, or clinic where abortions are
22	22	performed or induced who has knowledge of a failure to comply with the
23	23	requirements of the bill must immediately report the failure to an appropriate law
24	24	enforcement agency. Any person who violates the requirement to exercise
25	25	professional skill, care, and diligence or to ensure the child is transported and
26	26	admitted to a hospital is guilty of a felony with a penalty of a fine not to exceed
27	27	$10,000, imprisonment not to exceed six years, or both. The mother of the child born
28	28	alive, however, may not be prosecuted. This bill specifies that a woman upon whom
29	29	an abortion was performed or attempted may bring a claim for damages, including
30	30	damages for personal injury and emotional and psychological distress, against a
31	31	person who violates or attempts to violate the requirements of the bill.
32	32	The bill also makes intentionally causing the death of a child born alive as a
33	33	result of an abortion or an attempted abortion a felony with a penalty of life
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38	38	SENATE BILL 61
39	39	imprisonment, which is the same penalty as first-degree intentional homicide. The
40	40	mother of the child born alive may not be prosecuted under this provision in the bill.
41	41	Under current law, an individual who undergoes a live birth is considered born
42	42	alive. “Live birth” is defined as the complete expulsion or extraction from his or her
43	43	mother, of a human being, at any stage of development, who, after the expulsion or
44	44	extraction, breathes or has a beating heart, pulsation of the umbilical cord, or
45	45	definite movement of voluntary muscles, regardless of whether the umbilical cord
46	46	has been cut and whether the expulsion or extraction occurs as a result of natural
47	47	or induced labor, a cesarean section, or an abortion. Under current law, whoever is
48	48	born alive as a result of an abortion is considered to have the same legal status and
49	49	legal rights as a human being at any point after the human being undergoes a live
50	50	birth as the result of natural or induced labor or a cesarean section.
51	51	Because this bill creates a new crime or revises a penalty for an existing crime,
52	52	the Joint Review Committee on Criminal Penalties may be requested to prepare a
53	53	report.
54	54	The people of the state of Wisconsin, represented in senate and assembly, do
55	55	enact as follows:
56	56	SECTION 1. 253.109 of the statutes is created to read:
57	57	253.109 Requirements relating to a child born alive after abortion. (1)
58	58	DEFINITIONS. In this section:
59	59	(a) “Abortion” has the meaning given in s. 253.10 (2) (a).
60	60	(b) “Born alive” means undergoes a live birth, as defined in s. 990.01 (19j).
61	61	(c) “Health care provider” has the meaning given in s. 146.81 (1).
62	62	(2) REQUIREMENTS OF HEALTH CARE PROVIDERS. Any health care provider present
63	63	at the time an abortion or attempted abortion results in a child born alive shall do
64	64	all of the following:
65	65	(a) Exercise the same degree of professional skill, care, and diligence to
66	66	preserve the life and health of the child as a reasonably diligent and conscientious
67	67	health care provider would render to any other child born alive at the same
68	68	gestational age.
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86	86	(b) Observing the exercise of skill, care, and diligence required under par. (a),
87	87	ensure that the child born alive is immediately transported and admitted to a
88	88	hospital.
89	89	(3) REPORTING OF VIOLATIONS. A health care provider or an employee of a
90	90	hospital, physician's office, or clinic where abortions are performed or induced who
91	91	has knowledge of a failure to comply with a requirement under sub. (2) shall
92	92	immediately report the failure to an appropriate law enforcement agency.
93	93	(4) CRIMINAL PENALTY; NO PENALTY FOR MOTHER. (a) Any person who violates sub.
94	94	(2) is guilty of a Class H felony.
95	95	(b) The mother of a child born alive under circumstances described in sub. (2)
96	96	may not be prosecuted for a violation of this section, an attempt to violate this section,
97	97	or a conspiracy to violate this section.
98	98	(5) CIVIL REMEDIES; INJUNCTIONS. (a) A woman upon whom an abortion was
99	99	performed, induced, or attempted may bring a claim for damages, including damages
100	100	for personal injury and emotional and psychological distress, against a person who
101	101	violates or attempts to violate sub. (2). A woman who brings a claim under this
102	102	paragraph may be awarded objectively verifiable monetary damages for all injuries
103	103	and damages equal to 3 times the cost of the abortion or attempted abortion.
104	104	(b) A woman who has been awarded damages under par. (a) shall, in addition
105	105	to any damages awarded under par. (a), be entitled to punitive damages for a
106	106	violation that satisfies a standard under s. 895.043 (3).
107	107	(c) 1. Notwithstanding s. 814.04 (1), a woman who recovers damages under par.
108	108	(a) or (b) may also recover reasonable attorney fees incurred in connection with the
109	109	action.
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135	135	SECTION 1 SENATE BILL 61
136	136	2. If a defendant prevails in an action under par. (a) and the court finds the
137	137	action was frivolous or brought in bad faith, notwithstanding s. 814.04 (1), the
138	138	defendant may recover reasonable attorney fees incurred in connection with
139	139	defending the action.
140	140	(d) A contract is not a defense to an action under this subsection.
141	141	(e) Nothing in this subsection limits the common law rights of a person that are
142	142	not in conflict with sub. (2).
143	143	(f) A prosecuting attorney with appropriate jurisdiction or the department of
144	144	justice may bring an action for injunctive relief against a person who has
145	145	intentionally or recklessly violated this section.
146	146	(6) ENFORCEMENT AUTHORITY. The department of justice or the district attorney
147	147	may investigate any allegation of or institute, manage, control, and direct, in the
148	148	proper county, any prosecution for a violation of this section. For this purpose, the
149	149	department of justice shall have and exercise all powers conferred upon district
150	150	attorneys in such cases.
151	151	(7) CONFIDENTIALITY IN COURT PROCEEDINGS. (a) In every proceeding brought
152	152	under this section, the court, upon motion or sua sponte, shall rule whether the
153	153	identity of any woman upon whom an abortion was performed or induced or
154	154	attempted to be performed or induced shall be kept confidential unless the woman
155	155	waives confidentiality. If the court determines that a woman's identity should be
156	156	kept confidential, the court shall issue orders to the parties, witnesses, and counsel
157	157	and shall direct the sealing of the record and exclusion of individuals from
158	158	courtrooms or hearing rooms to the extent necessary to safeguard the woman's
159	159	identity from public disclosure. If the court issues an order to keep a woman's
160	160	identity confidential, the court shall provide written findings explaining why the
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188	188	SECTION 1
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190	190	woman's identity should be kept confidential, why the order is essential to that end,
191	191	how the order is narrowly tailored to its purpose, and why no reasonable less
192	192	restrictive alternative exists.
193	193	(b) Any person, except for a public official, who brings an action under this
194	194	section shall do so under a pseudonym unless the person obtains the written consent
195	195	of the woman upon whom an abortion was performed or induced, or attempted to be
196	196	performed or induced, in violation of this section.
197	197	(c) This section may not be construed to allow the identity of a plaintiff or a
198	198	witness to be concealed from the defendant.
199	199	(8) CONSTRUCTION. Nothing in this section may be construed as creating or
200	200	recognizing a right to abortion or as making lawful an abortion that is otherwise
201	201	unlawful.
202	202	SECTION 2. 940.01 (1) (c) of the statutes is created to read:
203	203	940.01 (1) (c) Except as provided in sub. (2), whoever causes the death of a child
204	204	born alive under circumstances described in s. 253.109 (2) with intent to kill that
205	205	child is guilty of a Class A felony. The mother of a child born alive under
206	206	circumstances described in s. 253.109 (2) may not be prosecuted for a violation of this
207	207	paragraph, an attempt to violate this paragraph, or a conspiracy to violate this
208	208	paragraph.
209	209	(END)
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