Cory Liebman and One Wisconsin Now are promoting the efforts of some Democratic legislators to repeal Wisconsin's pre-Roe v. Wade ban on abortions. It is certainly true that the law, sec. 940.04, criminalizes abortion. It is also true, as I demonstrated in this white paper for Americans United for Life, that, should Roe be overruled, sec. 904.04 could be enforced against abortionists(although I suggest that the penalties for abortionists might not be those set forth in 940.04 itself.)
But Liebman is wrong to suggest that the law would impose "jail time on women that obtain abortions" and even jail "victims of sexual assault and those who experience serious health problems."
It would do no such thing. Sec. 940.04(3) did provide for imprisonment for women seeking abortions and that language has not been removed from the statute but it has been rendered inoperative, i.e., it has been effectively repealed.
In 1985, after Roe, the legislature passed several new laws, including sec. 940.13 which removes all criminal penalties for women seeking abortions. It reads:
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.
Thus, on the day after Roe is overuled, abortionists could be prosecuted under 904.04, but women seeking abortions could not because of the exception created by the more recent sec. 940.13.
How could Liebman have made this error? Sloppiness is one explanation. If you just read 940.04 and ignored the other statutory provisions on abortion (including those in the same chapter of the statute), you could get it wrong. Maybe you could excuse a non lawyer for failing to understand that there could be other law out there modifying the impact of 940.04.
But I rather doubt that Cory Liebman actually read the law. It occurred to me that this error likely came out of someone's talking points.
And so it did. Liebman's post links to a press release by the bill's sponsors, Rep. Terese Berceau and Sen, Mark Miller that is apparently the source of this misinformation. It says that the "criminal abortion statute outlaws abortion and provides criminal penalties for women and physicians." The release says that "[t]his 158-year-old law imposes jail time on women who obtain an abortion, even those who are victims of sexual assault or who are experiencing serious health problems. Doctors would also face stiff penalties and jail time. The antiquated statute would be enforced immediately if Roe v. Wade were to be reversed — a very real threat given the current composition of the U.S. Supreme Court." (emphasis added)
A Berceau quote then talks about people wanting to throw women in jail for having an abortion. The clear message is that we have to repeal 940.04 because, if we don't and Roe is overturned, women who have abortions will be prosecuted and sent to jail.
But, as I have pointed out, state statutes now bar criminal penalties for women seeking abortion. If Roe is overturned, sec. 940.04 could not be used to prosecute them.
Liebman can at least say that, after all, he doesn't know what he's talking about. But Berceau and Miller are legislators who we'd think would get some legal advice when they start talking about changing state law.
Well, it turns out that they did. The bill repealing sec. 940.04 (SB 398)- the very one that Berceau and Miller sponsor - includes a Legislative Reference Bureau analysis that recognizes the existence and effect of sec. 940.13:
This law (940.13) prohibits prosecution of and imposing or enforcing a fine or
imprisonment against a woman who obtains an abortion or otherwise violates any
abortion law with respect to her unborn child or fetus.
I would have assumed that legislators read the bills that they sponsor, but I have, sadly, learned that this is not always so. Maybe Berceau and Miller really think that, if Roe were repealed, sec. 940.04 could be applied against women.
Or maybe they know that there would be much broader - and energized - opposition to jailing women than jailing abortionists. Could they have chosen, in Clintonian fashion, to refer to statutory language that they know can no longer be enforced in order to mislead people into thinking that, should Roe be repealed, sec. 940.04 could be used to throw women seeking abortions into jail?
I sure hope it wasn't that.