POLITICS

Wisconsin Abortion Ban Would Allow Father To Sue For Emotional Distress

06/03/2015 12:04 pm ET | Updated Jun 04, 2015

Wisconsin Gov. Scott Walker (R) said this week that he would sign a ban on abortions after 20 weeks of pregnancy that does not contain exceptions for rape and incest victims, if the bill reaches his desk. The measure also contains a less-discussed provision that would allow the father to sue the doctor for "emotional and psychological distress" if he disagrees with the abortion, regardless of his relationship with the woman having the procedure.

Wisconsin Assembly Bill 237 would ban abortions after 20 weeks "postfertilization," which doctors would measure as 22 weeks of pregnancy since pregnancies are usually measured from the woman's last menstrual period. If the bill becomes law, doctors who perform an abortion after this time could be charged with a felony and fined up to $10,000, or face up to three and a half years in prison.

In addition to those penalties, the bill would allow the father to sue the doctor for damages, "including damages for personal injury and emotional and psychological distress," if the doctor performs or attempts to perform an abortion after the 20-week limit. The man does not need to be married to the woman or even in a relationship with her to sue her doctor, as long as the pregnancy is not a result of sexual assault or incest. The bill also says the woman can sue.

Walker and the co-authors of the bill, state Rep. Jesse Kremer (R) and Senate President Mary Lazich (R), did not respond to requests for comment. The Wisconsin House and Senate are expected to vote on the bill next week.

According to the Guttmacher Institute, a research organization that supports reproductive rights, 6 of the 11 states that currently ban abortion at 20 weeks postfertilization -- Alabama, Arkansas, Idaho, Kansas, Nebraska and Oklahoma -- have similar language tucked into their respective laws that allow the parents to sue a doctor who performs an abortion after that point. In Kansas, the provision applies to the father only if he is married to the woman who had the abortion.

So far, the 20-week ban is not standing up well in court. The 9th U.S. Circuit Court of Appeals struck down Idaho's law last week, ruling it "unconstitutional because it categorically bans some abortions before viability." The Supreme Court decided in Roe v. Wade in 1973 that states cannot ban abortions before the fetus would be viable outside the womb, which is estimated to occur between 22 and 24 weeks of pregnancy.

Republican supporters of the bill argue that abortions should be banned after 20 weeks because fetuses can feel pain at that point -- a theory that has been refuted by the mainstream medical community.

"Whether you're pro-life or not, that's a good time to say that shouldn't be legal after a time when an unborn child can literally feel pain," Walker told reporters this week.

Opponents of the bill point out that less than 1 percent of abortions occur after 20 weeks, and the women who seek them have often discovered severe medical problems with the fetus that were not clear in earlier tests. Marcy Stech, a spokeswoman for the progressive women's PAC EMILY's List, said the Wisconsin bill is "extreme, outrageous and profoundly wrong."

"A woman’s right to choose is hers and hers alone," Stech said. "Scott Walker is the last person on earth who should be telling women how to make their deeply personal decisions."

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