National Partnership for Women & Families

In the News

Wis. Senate Approves 20-Week Abortion Ban

Wis. Senate Approves 20-Week Abortion Ban

June 10, 2015 — The Wisconsin Senate on Tuesday in a 19-14 vote passed legislation (S 179) banning abortion at 20 weeks of pregnancy, Reuters/Duluth News Tribune reports.

The measure now proceeds to the Assembly, although it is unclear whether that chamber will consider the bill. Meanwhile, Wisconsin Gov. Scott Walker's (R) office on Tuesday said the governor would sign the bill if it is approved by the state Legislature (O'Brien, Reuters/Duluth News Tribune, 6/9).

According to the Milwaukee Journal Sentinel, 14 states have enacted laws that ban abortion at 18 or 20 weeks. Courts have blocked such bans in Arizona, Georgia and Idaho, but the bans remain unchallenged in the 11 remaining states (Hahn/Stein, Milwaukee Journal Sentinel, 6/9).

Bill Details

Current state law bans abortion after fetal viability, which is estimated to be at about 24 weeks.

The legislation is based on the unfounded notion that a fetus can feel pain at that point of development. The American Congress of Obstetricians and Gynecologists has said there is no legitimate scientific evidence showing that fetuses are capable of feeling pain at 20 weeks.

Physicians who violate the ban could face felony charges, fines of up to $10,000 and potential jail time of up to three years and six months. In addition, a woman who received an abortion after 20 weeks could sue the physician who performed the abortion for damages. The man involved in the pregnancy also would be allowed to sue the physician, except in cases in which the pregnancy was the result of rape or incest.

Further, the bill would require physicians to tell women the probable post-fertilization age of the fetus and estimate the probability of the fetus surviving outside of the womb. It would also require doctors to tell women that perinatal hospice care is available for infants who are expected to live short lives. State law already requires physicians to tell women seeking abortions the fetus' likely gestational age in writing and orally.

The measure includes exceptions for cases of medical emergencies but does not clearly define the term. Currently, it does not allow for exemptions in cases of rape and incest (Women's Health Policy Report, 6/5).

Legal Experts Say Lower Courts Cannot Uphold Ban

In related news, a group of legal experts earlier this week argued that lower federal courts would be obligated to overturn the Wisconsin ban if the measure is passed and challenged in court, the Journal Sentinel reports.

Three constitutional law experts have said the Supreme Court is the only court with the power to uphold the legislation. According to the experts, lower courts are restricted from upholding such a ban by Supreme Court precedent, which permits states to restrict abortion only after the fetus is viable.

Laurence Tribe, a professor at Harvard Law School, said, "Whether the Supreme Court might eventually be persuaded to change its interpretation of the Fourteenth Amendment to permit states to override a woman's decision a month earlier than 24 weeks, before the fetus is capable of surviving outside the womb, is hard to predict, but no lower court is free to make that change on its own, and neither a state Legislature nor a state's chief executive is free to do so either."

Rick Esenberg, president of the Wisconsin Institute on Law & Liberty, agreed with Tribe.

Caitlin Borgmann, a professor at the City University of New York School of Law, also noted that Supreme Court precedent only permits states to restrict abortion once a fetus is able to survive outside the womb, which is generally at 24 weeks of pregnancy. Both Borgmann and Esenberg said the legislation aims to get an eventual ruling from the high court (Milwaukee Journal Sentinel, 6/9).