AB 448

Current statutes contain a prohibition on the performance of partial-birth

abortions and define a partial-birth abortion as one during which a person partially

delivers a living fetus, causes the death of the living fetus with the intent to kill the

fetus, and then completes delivery of the fetus. A person who performs a

partial-birth abortion is guilty of a Class A felony. Current statutes allow an

exception if the partial-birth abortion is performed to save the life of the pregnant

woman and no other option is available. Current law also grants a civil cause of

action to the father of a fetus aborted by a partial-birth abortion if the father did not

consent to the partial-birth abortion procedure.

After the United States Supreme Court, in

Stenberg v. Carhart

, 530 U.S. 914

(2000), invalidated a Nebraska statute that prohibited "partial-birth abortion," the

Seventh Circuit Court of Appeals held that the current Wisconsin statute prohibiting

partial-birth abortion had the same constitutional flaws as the Nebraska statute

and enjoined its enforcement.

Planned Parenthood of Wisconsin et al. v. Doyle, et al.,

249 F.3d 603 (7th Cir. 2001).

In 2007, the United States Supreme Court upheld a federal ban on

partial-birth abortion, finding that the federal ban did not unduly burden a woman's

right to an abortion and that the federal statute set forth specific "landmarks" that

clearly delineate when a partial-birth abortion is being performed.

Gonzales v.

Carhart,

550 U.S. 124 (2007).

Under this bill, the current prohibition on the performance of partial-birth

abortions is changed to define "partial-birth abortion" as an abortion during which

a person vaginally delivers a living fetus until a certain proportion of the fetal body

is outside of his or her mother's body and then kills the partially delivered fetus. This

definition is the same as that under the federal ban, as upheld by

Gonzales

. Under

this bill, a physician or other person who violates the prohibition is guilty of a Class

I felony. As under federal law, this bill prohibits the prosecution of a woman upon

whom a partial-birth abortion is performed. This bill also eliminates any exception

to the prohibition.

The bill also specifies that a civil cause of action granted to the father of a fetus

aborted by a partial-birth abortion is limited to cases in which the father was

married to the mother at the time the abortion was performed.

Because this bill creates a new crime or revises a penalty for an existing crime,