SB 271

This bill specifies that every individual has the fundamental right to bodily autonomy, which includes the right to access abortion. Under the bill, the state may not prohibit an individual from obtaining an abortion if an abortion is necessary in the professional judgment of the individual’s medical provider. Also under the bill, a law or rule of this state that restricts a individual’s access to abortion is unenforceable if the law or rule does not confer any legitimate health benefit. Any person that is or may be aggrieved by the enforcement of a law or rule passed or promulgated after the effective date of the bill that would be unenforceable under the bill may bring an action in state or federal court for injunctive relief or damages against a state or local official who enforces or attempts to enforce such a law or rule. The bill also expressly provides that all requirements applicable to health care providers are applicable to providers of abortion care.

The bill does not change standard informed consent requirements applicable to all medical procedures, including abortion, but removes additional requirements specific to the performance of an abortion that exceed those standard informed consent requirements. Current law requires that these additional requirements must be met in order for a woman upon whom an abortion is to be performed or induced to give voluntary and informed consent to an abortion. Except in a medical emergency, under current law, a woman’s consent to an abortion is considered informed only if, with certain exceptions, at least 24 hours before the abortion is performed or induced, the physician or an assistant has, in person, orally provided the woman with certain information and given to the woman certain written materials. The bill repeals these requirements.

Under current law, the state is required to offer to all of its employees at least 2 insured or uninsured health care coverage plans. Further, under current law, certain employers including counties, villages, towns, school districts, and other governmental units or instrumentalities other than the state may offer to all of its employees a health care coverage plan through a program offered by the Group Insurance Board. Current law prohibits these plans from providing coverage for abortion or services the funding for which is ineligible under current law. The bill repeals these restrictions and instead requires coverage of abortion and any other medical services necessary to provide abortion under these health coverage plans if the health care coverage plan provides maternity coverage.

The bill also repeals other various abortion-related laws, including all of the following:

1. The bill eliminates the prohibition on giving a woman an abortion-inducing drug unless the physician who provided the drug for the woman performs a physical exam on the woman and is physically present in the room when the drug is given to the woman.

2. The bill eliminates the prohibition on coverage of abortions by qualified health plans offered through an exchange in this state.

3. The bill eliminates the prohibition on performing abortions by a physician that does not have admitting privileges in a hospital within 30 miles of the location where the abortion is to be performed. This statute was previously held to be unenforceable by the U.S. Court of Appeals for the 7th Circuit in

Planned Parenthood of Wis., Inc. v. Schimel

, 806 F.3d 908 (7th Cir. 2015), which affirmed a permanent injunction granted by the U.S. District Court for the Western District of Wisconsin.

4. The bill repeals a statute that provides that any person, other than the mother, who intentionally destroys the life of an unborn child may be fined not more than $10,000, imprisoned for not more than six years, or both. “Unborn child” is defined in the statute as a human being from the time of conception until born alive. The statute also provides that any person, other than the mother, who intentionally destroys the life of an unborn quick child or causes the mother’s death by an act done with intent to destroy the life of an unborn child may be fined not more than $50,000, imprisoned for not more than 15 years, or both. None of these penalties apply to a therapeutic abortion that is performed by a physician; is necessary, or advised by two other physicians as necessary, to save the life of the mother; and, unless an emergency prevents, is performed in a licensed maternity hospital. This statute was previously held to be unenforceable. It was cited in

Roe v. Wade

, 410 U.S. 113 (1973), as similar to a Texas statute that was held to violate the due process clause of the 14th Amendment to the U.S. Constitution. The unenforceability of the statute following the

Roe v. Wade

decision was noted in a subsequent decision by a federal district court,

Larkin v. McCann

, 368 F. Supp. 1352 (E.D. Wis. 1974). In June 2022, the U.S. Supreme Court overturned the

Roe v. Wade

decision in

Dobbs v. Jackson Women’s Health Org.

, 142 S. Ct. 2228 (2022). Litigation concerning the status of the statute is currently pending in state court. In December 2023, the Dane County Circuit Court issued a decision and order declaring that the statute “does not apply to abortions.”

Kaul v. Urmanski

, No. 22-CV-1594, slip op. at 14 (Wis. Dane Cnty. Cir. Ct. Dec. 5, 2023). An appeal is pending before the Wisconsin Supreme Court. See

Kaul v. Urmanski

, No. 2023AP002362 (Wis. July 2, 2024) (order granting a petition to bypass the court of appeals). The Wisconsin Supreme Court has also granted a petition for leave to commence an original action regarding whether the state constitution protects a right to receive an abortion and a right for physicians to provide abortions. See

Planned Parenthood of Wisconsin v. Urmanski

, No. 2024AP000330 (Wis. July 2, 2024) (order granting leave to commence an original action); see Petition to Wis. S. Ct. to Take Jurisdiction of an Original Action,

Planned Parenthood of Wisconsin v. Urmanski

, No. 2024AP000330 (Wis. filed Feb. 22, 2024).

The bill also repeals the criminal penalty on a person who is not a physician and who intentionally performs an abortion. The bill does not affect any other criminal prohibition or limitation on abortion in current law, such as the general prohibition on performing an abortion after the fetus or unborn child has reached viability, or any other homicide prohibition. The bill also does not affect a separate provision in current law that prohibits prosecution of and imposing or enforcing a fine or imprisonment against a woman who obtains an abortion or otherwise violates any abortion law with respect to her unborn child or fetus.