Section 939.75. Death or harm to an unborn child.

 

(1)  In this section and ss. 939.24 (1) , 939.25 (1) , 940.01 (1) (b) , 940.02 (1m) , 940.05 (2g) and (2h) , 940.06 (2) , 940.08 (2) , 940.09 (1) (c) to (e) and (1g) (c) , (cm) , and (d) , 940.10 (2) , 940.195 , 940.23 (1) (b) and (2) (b) , 940.24 (2) and 940.25 (1) (c) to (e) , “unborn child" means any individual of the human species from fertilization until birth that is gestating inside a woman.

(2)  

(a) In this subsection, “induced abortion" means the use of any instrument, medicine, drug or other substance or device in a medical procedure with the intent to terminate the pregnancy of a woman and with an intent other than to increase the probability of a live birth, to preserve the life or health of the infant after live birth or to remove a dead fetus.

(b) Sections 940.01 (1) (b) , 940.02 (1m) , 940.05 (2g) and (2h) , 940.06 (2) , 940.08 (2) , 940.09 (1) (c) to (e) and (1g) (c) , (cm) , and (d) , 940.10 (2) , 940.195 , 940.23 (1) (b) and (2) (b) , 940.24 (2) and 940.25 (1) (c) to (e) do not apply to any of the following:

1. An act committed during an induced abortion. This subdivision does not limit the applicability of ss. 940.04 , 940.13 , 940.15 and 940.16 to an induced abortion.

2. An act that is committed in accordance with the usual and customary standards of medical practice during diagnostic testing or therapeutic treatment performed by, or under the supervision of, a physician licensed under ch. 448 .

2h. An act by any health care provider, as defined in s. 155.01 (7) , that is in accordance with a pregnant woman's power of attorney for health care instrument under ch. 155 or in accordance with a decision of a health care agent who is acting under a pregnant woman's power of attorney for health care instrument under ch. 155 .

3. An act by a woman who is pregnant with an unborn child that results in the death of or great bodily harm, substantial bodily harm or bodily harm to that unborn child.

4. The prescription, dispensation or administration by any person lawfully authorized to do so and the use by a woman of any medicine, drug or device that is used as a method of birth control or is intended to prevent pregnancy.

(3)  When the existence of an exception under sub. (2) has been placed in issue by the trial evidence, the state must prove beyond a reasonable doubt that the facts constituting the exception do not exist in order to sustain a finding of guilt under s. 940.01 (1) (b) , 940.02 (1m) , 940.05 (2g) , 940.06 (2) , 940.08 (2) , 940.09 (1) (c) to (e) or (1g) (c) , (cm) , or (d) , 940.10 (2) , 940.195 , 940.23 (1) (b) or (2) (b) , 940.24 (2) or 940.25 (1) (c) to (e) .

1997 a. 295 ; 2001 a. 109 ; 2003 a. 97 . Defendant's conviction under s. 940.09 (1) (c) for causing the death of an unborn child by intoxicated use of a motor vehicle was not unconstitutional. The court rejected the assertion that sub. (2) (b) 3. denies equal protection of the law because a pregnant woman can perform acts that cause the death of her unborn child without criminal liability while others are not similarly exempt for acts causing the death of the same unborn child. Because neither the defendant in this case nor anyone else is similarly situated to a pregnant woman who engages in conduct that causes the death of or harm to the unborn child within the pregnant woman, there is no equal protection violation. State v. Benson, 2012 WI App 101 , 344 Wis. 2d 126 , 822 N.W.2d 484 , 11-1399 .