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Abortion is a felony in Wisconsin.  Contact our criminal defense attorneys immediately for help: (414) 270-0202

Abortion, when conducted by a medically licensed professional, with consent of the mother, is constitutionally protected.  Additionally, the statute itself makes clear it does not apply to therapeutic abortions.  This article discussions abortion outside of those circumstances.

Abortion is a felony in Wisconsin.  Depending on the circumstances, the offense is either a Class H or Class E felony.  A Class H felony carries a maximum penalty of 6 years prison, $10,000.00 in fines, or both.  A Class E felony is even more serious and carries a maximum penalty of 15 years in prison, $50,000.00 in fines, or both.  Both of these scenarios are certainly scary and carry the potential for significant penalties.

The criminal defense attorneys at Van Severen Law Office, S.C. are some of the best in Wisconsin.  We regularly defend individuals facing all criminal charges, ranging from mitigated misdemeanors to the highest level felonies.  Your abortion charges are serious.  We recognize that.  And we certainly look forward to aggressively fighting this, or any other, criminal charge.  Finally, contact us immediately at (414) 270-0202 and let’s start fighting your case.

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Wis. Stat. 940.04 – Abortion

Section 940.04 of the Wisconsin Statutes prohibits abortion.  The law says:

(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.

Section 940.04(2) does not apply to consensual abortions.

A “quick child” is the legal term for a fetus that has developed to the point where it can move inside the womb.  This means the fetus has a heartbeat and brainwaves that register electronically.  In other words, without the abortion, the child could conceivably survive delivery.

Wisconsin Criminal Jury Instruction 1125 – Abortion (Feticide)

Wisconsin criminal jury instruction 1125 provides the instructions for section 940.04(1) of the Wisconsin Statutes.  Importantly, the notes in the jury instructions make clear the kind of case involved:

This is not an abortion case in the sense of Roe v. Wade. That is, this is not a case about a woman’s right to terminate her pregnancy. This is not a case about a physician’s right to perform the medical procedure of abortion. Further, this is not a case about when an unborn child “quickens” or becomes “viable.” This is a case about feticide.  State v. Black 188 Wis.2d 639, 643-44, 526 N.W.2d 132 (1994).

The jury instruction provides two elements of the offense:

  1. Firstly, (Name of mother) was pregnant with a living unborn child. The term “unborn child” means a human being from the time of conception until it is born alive; and
  2. Secondly, the defendant intentionally destroyed the life of the unborn child.

Considering the note, again, this isn’t the case involving a woman who goes to an abortion clinic and engages in the procedure.  This is the kind of case involving someone other than the mother.  For example, if the mother’s boyfriend intentionally destroys the life of the unborn child, he can be charged under this section.  Finally, this statute could be used to charge a non-physician conducting the abortion, as allowed in Connecticut v. Menillo, 423 U.S. 9 (1975).

Roe v. Wade and its impact on abortion law

Roe v. Wade is a 1970 case, filed by Jane Doe (a fictional name to protect the plaintiff’s identity) against Henry Wade, the district attorney for Dallas County, Texas.  The lawsuit challenged a Texas law making abortion illegal except by a doctor’s orders to save a woman’s life.  Roe’s lawsuit alleged that the state laws were unconstitutionally vague and abridged her right of personal privacy, protected by the First, Fourth, Fifth, Ninth, and Fourteenth Amendments.

The issue in the case was simple: does the Constitution recognize a woman’s right to terminate her pregnancy by abortion?

And the answer was yes, by a 7-2 majority of the Court.

The Due Process Clause of the Fourteenth Amendment protects against state action the right to privacy, and a woman’s right to choose to have an abortion falls within that right to privacy. A state law that broadly prohibits abortion without respect to the stage of pregnancy or other interests violates that right. Although the state has legitimate interests in protecting the health of pregnant women and the “potentiality of human life,” the relative weight of each of these interests varies over the course of pregnancy, and the law must account for this variability.

In the first trimester of pregnancy, the state may not regulate the abortion decision; only the pregnant woman and her attending physician can make that decision. In the second trimester, the state may impose regulations on abortion that are reasonably related to maternal health…  Source.

Abortion protester
Abortion is certainly a hot button social issue in today’s society. But our criminal defense attorneys are here to guide you through your charges. Contact us immediately at (414) 270-0202.

Finally, contact our criminal defense attorneys for help immediately

Abortion and homicide charges are certainly serious.  Our criminal defense lawyers recognize that cases like this require aggressive representation matched with the discretion required for a case that may receive media attention.  We’ve fought for clients through jury and we’ve resolved cases through favorable pleas for our clients.  No matter your goals, we’re prepared to defend you through the end.

Contact us immediately and let’s start fighting your charge.  You can reach our firm 24/7 at (414) 270-0202.

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