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Doctors fear 'incredibly vague' abortion ban exception as Republicans reject repealing law

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The Republican-controlled Legislature on Wednesday rejected Democratic Gov. Tony Evers’ call to repeal the state’s anti-abortion law, which allows abortions only to save a mother’s life — a determination doctors say could be risky to make.


People gather in support of abortion rights Wednesday at the state Capitol as Republicans rejected Gov. Tony Evers' call for repealing the state's 19th century abortion law.

If doctors break the law, which could go into effect if the U.S. Supreme Court overturns Roe v. Wade, they risk a felony conviction punishable by up to 10 years in prison.

“This law was not written by physicians, and the language is incredibly vague and lacking medical specificity,” Planned Parenthood of Wisconsin spokesperson Lisa Boyce said, adding that the law was written before “our modern medical understanding and technology.”

“Therefore, we are forced to try to interpret the law through both a medical lens and a modern lens, and those interpretations can vary depending on who you are talking to — one of the many reasons this ban is so concerning for both providers and patients,” Boyce continued.

Anticipating a Supreme Court decision overturning Roe v. Wade, Planned Parenthood of Wisconsin isn’t scheduling abortions after Saturday.

Wisconsin’s law, first passed in 1849, states abortions are only permissible when it’s necessary, “or is advised by 2 other physicians as necessary,” to save the mother’s life. The abortion must also be performed by a physician and take place in a licensed maternity hospital unless an emergency makes that an impossibility.

Some instances in which a woman could require an abortion to save her life include ectopic pregnancies, preterm premature rupture of membranes and preeclampsia, said Dr. Kristin Lyerly, a Green Bay general obstetrics and gynecology doctor who serves as District 6 legislative chair for the American College of Obstetricians and Gynecologists. Lyerly, an abortion care provider who previously ran for the Assembly as a Democrat, said she sometimes deals with high-risk pregnancies.

The preterm premature rupture of membranes is when a woman’s water breaks early in the pregnancy, which could cause a severe and potentially fatal infection. With preeclampsia, women can develop high blood pressure and organ damage, also potentially leading to death. Likewise, ectopic pregnancies — when a fertilized egg grows outside the main cavity of the uterus — can be fatal.

“I’m really worried about it,” Lyerly said about the risk behind making the determination that an abortion is necessary to save a woman’s life. “And so are all of my colleagues who talk about it.”

‘Gray issue’

Part of the concern is that decisions typically made by the patient and her doctor would now be scrutinized by people in the legal realm without medical training, Lyerly said.

“The political and social world like to see this as a black-and-white issue, but … it is an entirely patient-focused gray issue that can really only be well managed when there are no politicians in the exam room, and the conversation is all about what is the best thing for my patients,” Lyerly said.


Darlene Johns leads call-and-response chants during a rally in support of Planned Parenthood and abortion rights on Wednesday.

Gracie Skogman, legislative director at the anti-abortion group Wisconsin Right to Life, said under the state’s law pregnant women facing life-threatening conditions “will be able to receive the medical care they need.”

“A lifesaving medical procedure or treatment for the mother, that may indirectly result in the loss of life for the preborn child, is not considered an abortion and is not classified as such under the law,” Skogman said.

Skogman clarified she was not referring to abortion as a lifesaving procedure. Her intent, she said, was to draw a distinction between medical procedures to save the mother “that may inadvertently result in the loss of life for the child” and an elective abortion.

But abortions are sometimes the only procedure that can save a patient’s life, according to a 2019 joint statement by the American College of Obstetricians and Gynecologists and Physicians for Reproductive Health.

Pro-Life Wisconsin legislative director Matt Sande said he dislikes the provision allowing exceptions for when a woman’s life is in danger because “we want to remove the broad and undefined ‘life-of-the-mother’ exception and replace it with language requiring equal care for mother and child and granting the physician immunity if he or she follows the requirement.”

Dan Lennington, deputy counsel at the conservative Wisconsin Institute for Law and Liberty, said traditional legal defenses such as the defense of others or necessity may, in some circumstances, justify a medical procedure that results in fetal demise. Lennington said that would still be true even if Wisconsin didn’t have an exception for the mother’s life.

While a legal case against an abortion provider could involve “difficult questions at the margins,” Lennington said, that’s not unique to abortion. “The law of homicide can also present hard questions, but they do not render us incapable of having a law of homicide. So it is with abortion.”

“The law is not clear,” said Dr. Douglas Laube, who does abortions at Planned Parenthood in Madison and is the former chair of obstetrics and gynecology at UW-Madison. “I believe that a well-stated, evidence-based reason for pregnancy termination would still prevail, and minimize, if not eliminate risk of criminal prosecution.”

A Legislative Reference Bureau attorney who declined to be identified by name said “abortion” and “necessary to save the life of the mother” are undefined under the criminal abortion statute.

“The decision of whether an abortion is necessary to save the life of the mother falls within the professional discretion of the physician, limited only by the physician’s scope of practice and the standard of care applicable to their medical practice,” the attorney said. “The physician’s decision must be reasonable considering the circumstances, but it is otherwise not limited by law.”

Special session


Gov. Tony Evers called the Legislature into special session to address the state's abortion law, but Republican lawmakers gaveled in and out without taking action.

On Wednesday, the Legislature rejected an effort Evers made, as the U.S. Supreme Court is poised to overturn Roe, to repeal Wisconsin’s criminal abortion ban passed in 1849.

The Senate session lasted less than 30 seconds before Senate President Chris Kapenga, R-Delafield, gaveled out of it.

Referring to the imminent U.S. Supreme Court ruling, Evers said, “Republicans balked, leaving women and families across the state behind and providing no certainty or security for accessing the reproductive healthcare every person deserves.”

Republicans slammed Evers’ call to convene them in a special session when the governor announced it June 8, calling it a blatant political move. While Evers required lawmakers to gavel into the session, he could not require them to hold debate or advance the measures.

“I agree with the will of the majority of Wisconsinites that abortion should be legal in all or most cases,” Senate Minority Leader Janet Bewley, D-Mason, said in a news conference Wednesday morning.

Statewide Marquette Law School polls conducted between September 2012 and last October found that, on average, 25% of respondents said abortion should be legal in all cases and almost 35% said it should be legal in most cases, while 23% said it should be illegal in most cases and 12% said it should be illegal in all cases. An average of 4% of respondents over the 11 polls said they did not know enough to have an opinion.

In Wednesday’s Marquette Law School Poll, 27% of respondents said abortion should be legal in all cases, 31% said it should be legal in most cases, 24% said it should be illegal in most cases and 11% said it should be illegal in all cases.

Assembly Speaker Robin Vos, R-Rochester, supports rape and incest exceptions, which don’t currently exist in the abortion ban, spokesperson Angela Joyce said in a statement. Joyce did not respond to a question asking if Vos would try to add exceptions for rape and incest into Wisconsin’s abortion ban if Roe is overturned.

“If the legislature fails to act today, access to safe and legal abortion in Wisconsin will very likely be lost — at least temporarily, and possibly for much longer,” Democratic Attorney General Josh Kaul said in a statement.

Top 10 Wisconsin political stories of 2021 (based on what you, the readers, read)

2021 was another big year in Wisconsin politics. Sen. Ron Johnson said some things. Voters elected a new state superintendent. Gov. Tony Evers and Republicans clashed over mask mandates. Michael Gableman threatened to jail the mayors of Madison and Green Bay. Here are 10 political stories you, the readers, checked out in droves.

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Since the start of the outbreak, Gov. Tony Evers has issued multiple public health emergencies and a series of related orders. 

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The idea is in its infancy and all options, including declining to pursue anything, are on the table.

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Gableman has asked the court, which plans to take up the matter on Dec. 22, to compel the two mayors to meet with him.

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Deborah Kerr said she has also voted for Republicans and tells GOP audiences on the campaign trail for the officially nonpartisan race that she is a "pragmatic Democrat."

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Limbaugh died Wednesday at 70.


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