253.107 Probable postfertilization age; later-term abortions.

(1) Definitions. In this section:

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

(b) “Medical emergency" has the meaning given in s. 253.10 (2) (d).

(c) “Probable postfertilization age of the unborn child" means the number of weeks that have elapsed from the probable time of fertilization of a woman's ovum.

(2) Probable postfertilization age. Except in the case of a medical emergency, no physician may perform or induce an abortion, or attempt to perform or induce an abortion, unless the physician performing or inducing it has first made a determination of the probable postfertilization age of the unborn child or relied upon such a determination made by another physician.

(3) Protection of unborn child capable of feeling pain from abortions.

(a) No person shall perform or induce or attempt to perform or induce an abortion upon a woman when the unborn child is considered capable of experiencing pain unless the woman is undergoing a medical emergency. For purposes of this subsection, an unborn child is considered to be capable of experiencing pain if the probable postfertilization age of the unborn child is 20 or more weeks.

(b) When the unborn child is considered capable of experiencing pain and the pregnant woman is undergoing a medical emergency, the physician shall terminate the pregnancy in the manner that, in reasonable medical judgment, provides the best opportunity for the unborn child to survive, unless the termination of the pregnancy in that manner poses a greater risk either of the death of the pregnant woman or of the substantial and irreversible physical impairment of a major bodily function of the woman than other available methods.

(4) Penalty. Any person who violates sub. (3) (a) is guilty of a Class I felony. No penalty may be assessed against a woman upon whom an abortion is performed or induced or attempted to be performed or induced.

(5) Civil remedies; injunctions.

(a) Any of the following individuals may bring a claim for damages, including damages for personal injury and emotional and psychological distress, against a person who performs, or attempts to perform, an abortion in violation of this section:

1. A woman on whom an abortion is performed or induced or attempted to be performed or induced.

2. The father of the aborted unborn child or the unborn child that is attempted to be aborted, unless the pregnancy is the result of sexual assault under s. 940.225 (1), (2), or (3) or incest under s. 948.06 (1) or (1m).

(b) A person 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 person 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) or (3).

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

(6) 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.

(7) 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.

History: 2015 a. 56.