The recent Supreme Court decision in Dobbs v. Jackson Women’s Healthcare Organization has forced healthcare professionals in Wisconsin to make immediate and difficult choices in their practices. Unfortunately, these decisions have also been made mostly out of fear of possible criminal or civil liability instead of clearcut law. First, it must be emphasized that the decision in Dobbs overturning the long-recognized precedence in Roe v. Wade does not outlaw abortion. The majority of the Supreme Court in Dobbs stated access to abortion is not a right protected under the United States Constitution and, instead, should be left to the individual States to regulate or prohibit as each sees fit[1].

Prior to the 1973 decision in Roe, Wisconsin had its own state criminal laws severely limiting abortion of an “unborn child” to those situations necessary to save the life of the mother[2]. According to the statute, first codified in 1849 and amended in 1858, an unborn child’s life began at conception until it was born alive. After the decision in Roe, and without repealing the outdated statute, the Wisconsin State Legislature enacted further abortion law allowing for an abortion until the fetus or unborn child reaches viability[3] or if necessary to preserve the life or health of the woman[4].

While litigation has already been filed challenging the relationship between these two enforceable and contradictory laws[5], they both share language that further confuses whether a healthcare professional can or cannot perform an abortion. Section 940.04(5)(b) made an exception to allow for “therapeutic abortion”, which was deemed “necessary, or is advised by 2 other physicians as necessary, to save the life of the mother”. Compare that language to Section 940.15(3) that makes an exception for abortions “necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman’s attending physician”.

On their faces, both laws seem to give physicians the power to determine, based on their own professional medical judgment, whether a woman can receive a legal abortion. The question then becomes, how could a court of law determine whether a physician exercised reasonable medical judgment under the specific circumstances? It should follow that if a physician can show the abortion was necessary in his or her own judgment, the physician cannot be prosecuted. The language of the statutes blends the distinction between criminal intent and medical negligence. Where a physician’s intent to perform an abortion is supported by his or her own judgment, the State would likely have to present its own expert to testify that the physician’s actions were unreasonable under the standard of care, borrowing from the factors necessary to prove medical negligence[6].

Without clearer guidance from the State legislature, this issue will certainly generate a new and underdeveloped area of litigation combining aspects of both civil and criminal law. At Leib Knott Gaynor LLC we are constantly monitoring changes in the healthcare field to better serve out clients. Contact us today so we can help keep your practice secure.

[1] Dobbs v. Jackson Women’s Healthcare Organization, 597 U.S. ___ (2022).

[2] See Wis. Stat. § 904.04

[3] “’[V]iability’ means that stage of fetal development when, in the medical judgment of the attending physician based on the particular facts of the case before him or her, there is a reasonable likelihood of sustained survival of the fetus outside the womb, with or without artificial support.” Wis. Stat. § 904.15(1).

[4] See Wis. Stat. § 904.15

[5] Kaul et. al. v. Kapenga et. al., Dane County Case No. 22-CV-1594.

[6] See Wis. JI-Civ. 1023; see also Ahola v. Sincock, 6 Wis. 2d 332, 349, 94 N.W.2d 566 (1959) (“It was the defendant’s duty to exercise that degree of care, diligence, judgment, and skill which physicians in good standing in the same school of medicine usually exercise in the same or similar localities, under like or similar circumstances, having regard to the advanced state of medical or surgical science at the time he has discharged his legal duty to his patient. In order to hold him liable, the burden is upon the plaintiff to show that he failed in the requisite degree of care and skill. That degree of care and skill can only be proved by the testimony of experts. Without such testimony the jury has no standard which enables it to determine whether the defendant failed to exercise the degree of care and skill required of him.”) (citation omitted).