895.038 Partial-birth abortions; liability.

(1) In this section:

(a) “Child" has the meaning given in s. 940.16 (1) (a).

(b) “Partial-birth abortion" has the meaning given in s. 940.16 (1) (b).

(2)

(a) Except as provided in par. (b), any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion:

1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.

2. The father of the child aborted by the partial-birth abortion.

(b) A person specified in par. (a) 1. or 2. does not have a claim under par. (a) if any of the following apply:

1. The person consented to performance of the partial-birth abortion.

2. The pregnancy of the woman on whom the partial-birth abortion was performed was the result of a sexual assault in violation of s. 940.225, 944.06, 948.02, 948.025, 948.06, 948.085, or 948.09 that was committed by the person.

(3) The relief available under sub. (2) shall include all of the following:

(a) If the abortion was performed in violation of s. 940.16, damages arising out of the performance of the partial-birth abortion, including damages for personal injury and emotional and psychological distress.

(b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.

(4) Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion.

History: 1997 a. 219; 2005 a. 277.

A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 914, 147 L. Ed. 2d 743 (2000).

The federal Partial-Birth Abortion Ban Act of 2003 is distinguishable from Stenberg and is constitutional. Gonzales v. Carhart, 550 U.S. 124, 127 S. Ct. 1610; 167 L. Ed. 2d 480 (2007).

Enforcement of s. 940.16 is enjoined under Carhart. Hope Clinic v. Ryan, 249 F.3d 603 (2001).