2023 Wisconsin Statutes & Annotations
Chapter 940 - Crimes against life and bodily security.
940.04 - Abortion.

940.04 Abortion.

(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.

(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:

(a) Intentionally destroys the life of an unborn quick child; or

(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother's death was committed.

(5) This section does not apply to a therapeutic abortion which:

(a) Is performed by a physician; and

(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and

(c) Unless an emergency prevents, is performed in a licensed maternity hospital.

(6) In this section “unborn child" means a human being from the time of conception until it is born alive.

History: 2001 a. 109; 2011 a. 217.

Aborting a child against a father's wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).

Sub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe, 410 U.S. 113 (1973). State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).

The common law “year-and-a-day rule" that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.

The state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9, 96 S. Ct. 170, 46 L. Ed. 2d 152 (1975). But see Dobbs v. Jackson Women's Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

Discussing the viability of an unborn child. Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979).

Poverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980).

Discussing abortion issues. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983); Planned Parenthood Ass'n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983); Simopoulas v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).

The constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women's Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

Wisconsin's abortion statute, former s. 940.04, 1969 stats., is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970). But see Dobbs v. Jackson Women's Health Organization, 597 U.S. ___, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).

When U.S. Supreme Court decisions clearly made Wisconsin's antiabortion statute unenforceable, the issue in a physician's action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).