Section 895.038. Partial-birth abortions; liability.

 

(1)  In this section:

(a) “Child" has the meaning given in s. 940.16 (1) (a) .

(b) “Partial-birth abortion" has the meaning given in s. 940.16 (1) (b) .

(2)  

(a) Except as provided in par. (b) , any of the following persons has a claim for appropriate relief against a person who performs a partial-birth abortion:

1. If the person on whom a partial-birth abortion was performed was a minor, the parent of the minor.

2. The father of the child aborted by the partial-birth abortion.

(b) A person specified in par. (a) 1. or 2. does not have a claim under par. (a) if any of the following apply:

1. The person consented to performance of the partial-birth abortion.

2. The pregnancy of the woman on whom the partial-birth abortion was performed was the result of a sexual assault in violation of s. 940.225 , 944.06 , 948.02 , 948.025 , 948.06 , 948.085 , or 948.09 that was committed by the person.

(3)  The relief available under sub. (2) shall include all of the following:

(a) If the abortion was performed in violation of s. 940.16 , damages arising out of the performance of the partial-birth abortion, including damages for personal injury and emotional and psychological distress.

(b) Exemplary damages equal to 3 times the cost of the partial-birth abortion.

(4)   Subsection (2) applies even if the mother of the child aborted by the partial-birth abortion consented to the performance of the partial-birth abortion.

1997 a. 219 ; 2005 a. 277 . A Nebraska statute that provided that no partial birth abortion can be performed unless it is necessary to save the life of the mother whose life is endangered by a physical disorder, physical illness, or physical injury is unconstitutional. Stenberg v. Carhart, 530 U.S. 914 , 147 L. Ed. 2d 743 (2000). The federal Partial-Birth Abortion Ban Act of 2003 is distinguishable from Stenberg and is constitutional. Gonzales v. Carhart, 550 U.S. 124 , 127 S. Ct. 1610 ; 167 L. Ed. 2d 480 (2007). Enforcement of s. 940.16 is enjoined under Carhart. Hope Clinic v. Ryan, 249 F.3d 603 (2001).