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Home / David Ziemer / Planned Parenthood release misleads about Wisconsin law

Planned Parenthood release misleads about Wisconsin law

Planned Parenthood Advocates of Wisconsin is currently distributing a misleading press release concerning the Wisconsin Statutes.

The release states, “Wisconsin also has a Criminal Abortion Statute (Wis. Stat. § 940.04) remaining on its books. If Roe v. Wade were to be overturned under a McCain Administration, Wisconsin physicians who perform abortions could be charged with a felony, fined up to $50,000 and imprisoned for up to 15 years. Women who seek abortions could be charged with a felony, fined up to $10,000 and imprisoned for up to 3 ½ years.”

As the authors of the press release well know, however, Wis. Stat. 940.13 expressly provides that a woman cannot be prosecuted for having an abortion. The statute, enacted in 1985, long after sec. 940.04, provides:

“940.13 Abortion exception. No fine or imprisonment may be imposed or enforced against and no prosecution may be brought against a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus, and s. 939.05, 939.30 or 939.31 does not apply to a woman who obtains an abortion or otherwise violates any provision of any abortion statute with respect to her unborn child or fetus.”

Outraged at the fabrication concerning Wisconsin statutes, I contacted Planned Parenthood, and received this response:

“[I]f Roe v. Wade is nullified, a court in Wisconsin would be required to read the competing statutes (940.04 and 940.13) so that both laws can be given effect. Just because sec. 940.13 was passed after 940.04 is not reason enough for a court to interpret sec. 940.13 as controlling. As part of statutory construction, that court may turn to the legislative history of sec. 940.13. A review of the history shows a clear intent to leave all of 940.04 intact–including the criminal penalties for women.

“Thus, Wisconsin women could very well face criminal penalties. There is no certainty either way, a court will ultimately decide. As long as sec. 940.04 remains on the books, the potential for criminal liability remains.”

This analysis conflicts with the most basic rules of statutory construction. No prosecution against a woman who gets or seeks an abortion could plausibly go forth in the face of 940.13.

Even if the strawman interpretation of the statutes put forth by Planned Parenthood was plausible, which it is not, the failure of the press release to make any mention of sec. 940.13 in its press release is highly misleading.

Despite being an adamant supporter of abortion on demand, I cannot condone, and must condemn, this deliberate misrepresentation of the facts concerning Wisconsin’s statutes, especially in the days immediately before an election.


  1. The only way to guarantee women don’t go to jail under Wisconsin law should Roe v. Wade be overturned is to remove the criminal abortion statute. Instead of attacking Planned Parenthood, perhaps you should question why it was that 940.13 was passed instead of merely repealing 940.04? The answer is that the Right to Life crowd didn’t want to alter 940.04 and remove the criminal penalties. End of story. Instead, they created an ambiguity and a conflict. There is a current bill circulating in the legislature that would repeal the criminal abortion statute and end any confusion about imprisoning women and physicians. Anti-choice individuals are currently strongly resisting repealing 940.04 or altering it in any way. This 1849 statute must go in order to protect Wisconsin women. The bottom line is that McCain supports criminalizing abortion and that Wisconsin is the only state in the country that still provides criminal penalties in a criminal statute.

  2. Section 940.04 was probably left intact, so that a man could still be charged with aiding and abetting an abortion, even if the woman getting one could not be charged herself. That interpretation would give effect to both statutes, whereas allowing proseuction against the woman would nullify sec. 940.13, even though it was passed after sec. 904.04 — an absurd interpretation that no judge would adopt.

    The bottom line is not whether mccain supports crminalizing abortion or not. He does, and Planned Parenthood has every right to make that point.

    Instead, the bottom line is that the press release contains a deliberately misleading statement concerning Wisconsin’s statutes. And as an attorney with knowledge of the statutes, I need to call them on that, so the debate can take place based on accurate facts.

  3. Is there any issue that has garnered more attention and which affects less people than abortion? I find it incredible that abortion is even an issue. First, it’s about men controlling the lives of women. If men could get pregnant abortion would be legal for all time. Second, how do we justify killing human beings in misguided wars while claiming abortion is wrong because of the “sanctity” of life? Third, where in the Constitution did “We the People” grant the government control over our lives? It’s not there, because that power does not exist. Who do you trust more with your life – yourself or the government?

  4. You must know that you don’t have to repeal a whole statute but can amend it. They could have easily amended the statute to take out criminal penalties for women, and they didn’t. They didn’t for a reason. Right to Life still refused to take out the criminal penalties for women. Why?? Things are not as cut and dry as you make them seem in the political relm. Plus, as I litigator for seven years, you know judges do what they want. They have personal biases just like the rest of us.

  5. chris, let’s assume you are right, and a prosecutor could bring a case under sec. 940.04 against a woman who had an abortion, without being laughed out of court and sued for malicious prosecution.

    i disagree, but i get your point.

    Don’t you think that, nevertheless, the lack of any reference to sec. 940.13 whatsoever makes the press release highly misleading?

  6. In 2006 my long time girlfriend was killed, she was 5 months into her pregnancy. I have talked with a few lawyers and they have told me that I have no liable lawsuit or claim because the fetus was not considered a human being. Now, if women can be charged with causing harm to their unborn fetus, and abortion is murder, dont you think that the child her and I were bringing into this world would be considered a human being? Unfair laws?

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