History
Legislative history
In 1849, the state legislature passed a law that criminalized abortion, making it a felony for a doctor to perform an abortion on a woman, no matter the circumstances of her pregnancy including pregnancy as a result of rape or incest, unless the pregnancy endangers the life of the mother: [9] [10]
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 hereby produced, be deemed guilty of manslaughter in the second degree. [10]
In the 19th century, bans by state legislatures on abortion were about protecting the life of the mother given the number of deaths caused by abortions; state governments saw themselves as looking out for the lives of their citizens. [11]
By 1950, the state legislature would pass a law stating that a woman who had an abortion or actively sought to have an abortion, regardless of whether she went through with it, was guilty of a criminal offense. [11]
Wisconsin Stat. § 940.15, enacted in 1985, made abortion a crime only after viability, and allowed abortion after viability “if the abortion is necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman’s attending physician.” [12]
The state was one of 23 states in 2007 to have a detailed abortion-specific informed consent requirement. [13] Georgia and Wisconsin were 2 of the only 22 states with written informed consent materials referring women to "crisis pregnancy centers" which acknowledged these centers did not support or provide women with abortion related services. [14]
As of 2013, state Targeted Regulation of Abortion Providers (TRAP) law applied to medication induced abortions in addition to abortion clinics. [15]
Following the passage of a 2013 Wisconsin law requiring abortion providers to have admitting privileges at a nearby hospital, three Catholic hospital systems in the state intended to deny admitting privileges to abortion providers. Wisconsin's attorney general said this intent violated the Church Amendment of 1973, which prohibits hospitals receiving federal funds from discriminating against a doctor on the basis of whether or not the doctor provides abortions or sterilizations. [16]
Five bills sought to outlaw abortion in Wisconsin in 2019. [9] As of mid-May 2019, state law banned abortion after week 22. [17] In 2019, Governor Tony Evers vetoed four Republican passed bills that would have limited abortion access. [18] Specifically, the legislature passed a measure requiring abortion physicians to provide information on abortion reversal, a procedure that the scientific community sees as illegitimate and invalid, [lower-alpha 1] as it is not based upon medically-sound research. [20] [21] In addition, the legislature passed a bill that would eliminate all government funding for Planned Parenthood, as well as a ban on all abortions based upon the race, sex, or genetic anomaly of the fetus. [22] Evers also vetoed a bill that would sentence doctors to life in prison for failing to provide infants with medical care if they are born alive during a botched abortion attempt. [9] As of 2019, the state had a legal 24-hour waiting period before a woman could get an abortion. [9]
Judicial history
In March 1970, Myron L. Gordon, a U.S. district judge in the Eastern District of Wisconsin, granted a declaratory judgment, stating that Wisconsin's contemporary abortion law was unconstitutionally vague. However, this did not prohibit prosecutors from charging the plaintiff using different laws, or from enforcing the same law against different defendants. The defendant in the March case was subsequently recharged for violating Wisconsin's law against abortion. After that prosecution was also challenged in federal court, in November 1970, a three-judge panel granted an injunction forbidding the prosecution of any person under Wisconsin's law against abortion, thus effectively making abortion legal in Wisconsin. [23] The annotations in Wisconsin's abortion statute list the March 1970 declaratory judgement as the point where Wisconsin's abortion ban was overturned, [24] despite prosecutions and indictments for abortion continuing until the November 1970 injunction against enforcement. [23] The U.S. Supreme Court's 1973 decision in the case of Roe v. Wade affirmed the ban issued by U.S. district judge Myron Gordon.
After the passage of 2013 Wisconsin Act 37, which would have required all Wisconsin abortion providers to have hospital admitting privileges, [25] the law was almost immediately enjoined by U.S. district judge William M. Conley, in response to a lawsuit by Planned Parenthood of Wisconsin. [26] The law would have immediately required physicians providing abortion to obtain the right to admit patients at local hospitals—although federal law dictates that no hospital can deny a patient admittance. Wisconsin already had a transfer agreement requirement established, which mandates that all facilities where abortion is performed to have an agreement with a local hospital for the transfer of patients. Most in public health and clinical practice understand admitting privilege requirements—adopted by nine states, including Wisconsin—to be nonessential, and not grounded in evidence-based practice. [27] [28] Further, as argued during the court proceedings, the law would have led to diminished access to abortion within the state. After trial, the district judge, Conley, struck down the admitting privilege requirement.
The case, known as Planned Parenthood of Wisconsin v. Schimel, was appealed to the 7th Circuit U.S. Court of Appeals by Wisconsin's then-attorney general, Brad Schimel. In November 2015, the 7th Circuit upheld the U.S. district court ruling. The state's primary argument in defense of the admitting privileges requirement centered on women's health. Specifically, if complications arose, the requirement presumed a continuity of care for the patient. [29] The court's ruling, however, determined that the remarkably low rates of complications associated with abortion, and the state's failure to impose similar requirements on physicians providing riskier procedures rendered these claims moot. [30]
Following the 7th Circuit's ruling, Schimel petitioned the U.S. Supreme Court for review of the case; the Supreme Court chose not to hear the case, leaving the Appeals Court's ruling in place. [31] [32]
The legal situation was radically changed, however, in 2022, when the U.S. Supreme Court overturned their 1973 Roe v. Wade decision with their decision in Dobbs v. Jackson Women's Health Organization , No. 19-1392 , 597 U.S. 215 (2022). [33] [34] After the Dobbs decision, Wisconsin abortion providers immediately ceased elective abortions, fearing prosecution under the 1849 Wisconsin law which apparently banned abortion in all cases except to save the life of the mother. [35] Josh Kaul —who had replaced Brad Schimel as Attorney General of Wisconsin—filed a lawsuit disputing the enforceability of the old law, arguing more recent changes to abortion law effectively repealed it. [36] In 2023, a Dane County Wisconsin circuit court judge ruled that the 1849 law does not ban consensual abortions, but only prohibits foeticide. [37]
Clinic history
Between 1982 and 1992, the number of abortion clinics in the state declined by 13, going from 29 in 1982 to 16 in 1992. [38] In 2013, Affiliated Medical Services was located in Milwaukee at 1428 N. Farwell Ave. Women going to the clinic often had to be accompanied as there were protesters outside. [39] In 2014, there were 4 abortion clinics in the state. [40] In 2014, 96% of the counties in the state did not have an abortion clinic. That year, 67% of women in the state aged 15–44 lived in a county without an abortion clinic. [41] In March 2016, there were 22 Planned Parenthood clinics in the state. [42] In 2017, there were 21 Planned Parenthood clinics, of which 2 offered abortion services, in a state with a population of 1,270,774 women aged 15–49. [43]