Sign In
    Wisconsin Lawyer
    September 07, 2022

    Implications of the Dobbs Decision for Wisconsin Health Care Providers

    Health care institutions, individual providers, and associated professionals, such as pharmacists, must proceed carefully when considering the effects on their professional duties and responsibilities of the U.S. Supreme Court's overruling of Roe v. Wade.

    Angela Marie Rust


    On June 24, 2022, the U.S. Supreme Court overruled Roe v. Wade and held that the U.S. Constitution does not contain a right to have an abortion. Dobbs v. Jackson Women’s Health Organization returns “the authority to regulate abortion to the people and their elected representatives.”1 Wisconsin has a statute criminalizing abortion, which dates back to 1849, but also has several later-enacted statutes regulating legal abortion. On June 28, 2022, the Wisconsin Attorney General filed a lawsuit seeking a declaration that the 1849 statute criminalizing abortion is unenforceable.2 The Wisconsin Department of Safety and Professional Services (DSPS) and the Wisconsin Medical Examining Board (MEB), both of which regulate Wisconsin’s licensure of physicians, joined the lawsuit. Until the courts or further legislation provide more clarity, Wisconsin health care providers must consider how state and federal laws on the books relate to one another and what effects those laws have on the services health care providers can offer in Wisconsin.

    An Overview of Relevant Statutes and Regulations

    Wis. Stat. section 940.04 defines unborn child as a “human being from the time of conception until it is born alive.”3 This law makes it a Class H felony for “[a]ny person, other than the mother,” to “intentionally destroy[] the life of an unborn child”; the crime is a Class E felony if it involves an “unborn quick child.”4 The statute does not apply to a “therapeutic abortion … performed by a physician” if “necessary… to save the life of the mother….”5

    Angela M. Rust Angela M. Rust, Marquette 2007, of von Briesen & Roper SC, Neenah, practices primarily in health care law. She is a board member of the State Bar of Wisconsin’s Health Law Section. Get to know the author: Check out Q&A below.

    In 1970, the statute was found unconstitutional by the U.S. District Court for the Eastern District of Wisconsin in a case in which a physician was prosecuted for performing an abortion.6 When Roe v. Wade was decided in 1973, Wisconsin’s statute was listed as an example of a law that was unconstitutional.

    Then, without expressly repealing the 1849 law, the Wisconsin Legislature passed several laws to regulate lawful abortion, including Wis. Stat. section 940.15, which prohibits performing an abortion after viability; and Wis. Stat. section 253.107, which prohibits a physician from performing an abortion when the “probable postfertilization age of the unborn child is 20 or more weeks,” with an exception to prevent a woman’s death or “for which a 24-hour delay in performance or inducement of an abortion will create serious risk of substantial and irreversible impairment of one or more of the woman’s major bodily functions.”7 Additional statutes and regulations further regulate legal abortions, including informed-consent requirements, waiting periods, credentialing of physicians, and other requirements and limitations.8

    A provider’s violation of state statutes can be a basis for state regulators taking action against the provider’s license. For example, Wis. Admin. Code section Med 10.03, which governs physicians, defines unprofessional conduct to include “violation or conviction of any laws or rules of this state, or of any other state, or any federal law or regulation that is substantially related to the practice of medicine and surgery.” (Emphasis added.) It further defines unprofessional conduct to include “violating or being convicted of” certain listed criminal statutes and “any successor statute criminalizing the same conduct, or if in another jurisdiction, any act which, if committed in Wisconsin would constitute a violation of” the listed statutes. The listed statutes include murder and forms of intentional and reckless homicide. Legislators in other states have put forward bills characterizing intentional abortions in this manner.

    In contrast, some district attorneys and elected officials in Wisconsin have stated that they will not prosecute health care providers for providing abortion services.9 This is not necessarily reassuring, however, because the criminal statute of limitation might continue after elected officials are replaced, and because these officials do not have control of the activities of the DSPS or the MEB.10

    The Pending Lawsuit Challenging Wis. Stat. Section 940.04

    The Wisconsin attorney general’s lawsuit makes two arguments seeking a declaratory judgment that the older criminal statute, Wis. Stat. section 940.04, is unenforceable as applied to consensual abortions:11

    • The statute is unenforceable because the laws that Wisconsin passed after the decision in Roe v. Wade are fundamentally inconsistent with the broad ban against abortions found in the earlier statute.12

    • The statute is unenforceable because it has not been used in the 50 years since Roe v. Wade was decided. When a law falls out of common usage and becomes obsolete because of disuse, the law might become unenforceable based on notions of fairness or reliance.

    Similar arguments were raised and rejected in the very different context of State v. Black, a case involving feticide and domestic violence, in which the Wisconsin Supreme Court stated the following:

    “Nothing persuades us that the legislature intended to impliedly repeal sec. 940.04(2)(a) when it enacted sec. 940.15. … Section 940.15 places restrictions (consistent with Roe v. Wade) on consensual abortions: medical procedures, performed with the consent of the woman, which result in the termination of a pregnancy by expulsion of the fetus from the woman’s uterus. Section 940.04(2)(a), on the other hand, is not an abortion statute. It makes no mention of an abortive type procedure. Rather, it proscribes the intentional criminal act of feticide: the intentional destruction of an unborn quick child presumably without the consent of the mother.”13

    However, the court’s reasoning in Black included that prosecuting a physician for abortion services would be unconstitutional. Whether Wisconsin courts will analyze the scope of the statute differently in the context of consensual abortion and in the wake of Dobbs remains to be seen.

    Because the pending lawsuit primarily raises issues of statutory interpretation, it is likely that dispositive motions will be brought early in the litigation. An appeal is expected, however, and the parties – or the Wisconsin Court of Appeals – might attempt to fast track the case to the Wisconsin Supreme Court through bypass or certification. The case might therefore find its way to the Wisconsin Supreme Court by sometime this fall, paving the way for a possible decision by the end of 2022.

    This is the first lawsuit in Wisconsin challenging the state’s abortion laws since the Dobbs opinion was issued in June, but it might not be the last. There is also the possibility of future federal or state legislation. This area of the law is in flux and will require ongoing monitoring.

    Impact on Wisconsin Health Care Providers

    Health care providers who do not consider themselves “abortion providers” might nonetheless find themselves grappling with what is permitted under state law. Below are four issues that providers must consider.

    1) Wis. Stat. section 940.04 does not contain exceptions based on how conception occurs or why abortion is requested. Wis. Stat. section 940.04 does not address how conception is achieved. It does not contain exceptions for incest, rape, or fertility treatments, nor does it consider the reason a patient is seeking an abortion. Accordingly, the statute might restrict practices such as selective reduction of plural gestations (reducing the number of fetuses in a multifetal pregnancy, whether resulting naturally or through fertility assistance) and early termination of pregnancy upon diagnosis of fetal abnormalities incompatible with life (abortion following diagnosis of severe genetic defects in a developing fetus), unless the exception for saving the “life of the mother” is met.

    Further, because Wis. Stat. section 940.04 defines the term “unborn child” as of the time of “conception” without defining “conception,” questions might arise as to the permissibility of the destruction of embryos that have never been implanted and are cryopreserved after in vitro fertilization14 and as to forms of medical research.15 Although “conception” is not further defined in the statute or Wisconsin case law, federal case law has seemingly equated conception with implantation.16 Unlike non-emergency elective abortions, fertility treatment and in vitro fertilization procedures have continued to take place in Wisconsin since Dobbs was issued.17

    2) U.S. Supreme Court precedent on contraception remains in place. Although the dissenting and concurring justices in Dobbs debated the effect of the ruling on future hypothetical cases involving contraception,18 the majority emphasized that its decision did not overrule other case law cited in Roe v. Wade, including Griswold v. Connecticut.19 Therefore, “contraception” cannot be banned by state statute. Many contraceptives inhibit ovulation but can also prevent implantation of an embryo.20 Some faith-based health care institutions have long based their provision of certain services and medications on distinctions between the prevention of fertilization and the prevention of implantation of a fertilized embryo.21 However, Supreme Court precedent has not recognized these distinctions.22 Even if a fertilized embryo before implantation were said to fall within the Wis. Stat. section 940.04 definition of an “unborn child” and “human being,” the U.S. Constitution might limit the statute’s application in the context of contraception.

    3) Federal statutes continue to prevail over state law. Wis. Stat. section 940.04 contains an exception “to save the life of the mother” but not a broader exception for negative health implications, leaving some lack of clarity as to when a threat to health amounts to a threat to life. Nonetheless, other federal statutes provide pregnant patients with additional rights that are not abrogated by state statutes or the recent Dobbs decision.

    For example, the Office of Civil Rights (OCR) cautions that an individual experiencing early pregnancy loss can be prescribed mifepristone and misoprostol to assist with the passing of the miscarriage, and that refusing to fill such a prescription might be discrimination on the basis of sex, even though these medications can also be used to intentionally terminate pregnancy.23 Discrimination on the basis of pregnancy or related conditions is a form of sex discrimination. The OCR also issued a statement specific to the application of the Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule to disclosures of information relating to reproductive health care.24 This statement reminded providers that where state law does not specifically mandate reporting, and there is no other mandate enforceable in a court of law, such as a court order, the Privacy Rule does not permit disclosure to law enforcement of PHI, such as whether a patient has undergone an attempted abortion.25

    Since Jan. 1, 1987, medical facilities in Wisconsin have been required to report specified types of information on induced abortions performed in a Wisconsin health care facility under Wis. Stat. section 69.186. However, this system has never required reporting of patients suspected to have obtained such services in another state or self-managed an abortion. Accordingly, the following example provided by the OCR applies in Wisconsin: If a hospital workforce member suspects an individual who is experiencing miscarriage symptoms has taken medication to end their pregnancy, the workforce member is not permitted to disclose this suspicion to a law enforcement agency under the “required by law” text of the Privacy Rule.

    Even state laws that regulate direct abortion of established pregnancies could be preempted by federal law. The Centers for Medicare and Medicaid Services (CMS) recently issued a reminder that existing obligations under the Emergency Medical Treatment and Labor Act (EMTALA) require stabilizing treatments for, transfer of, or both for patients experiencing an emergency medical condition, which may include ectopic pregnancy, complications of pregnancy loss, or emergent conditions of a pregnancy, such as preeclampsia with severe features.26 The CMS stated as follows:

    If a physician believes that a pregnant patient presenting at an emergency department is experiencing an emergency medical condition as defined by EMTALA, and that abortion is the stabilizing treatment necessary to resolve that condition, the physician mustprovide that treatment. When a state law prohibits abortion and does not include an exception for the life and health of the pregnant person – or draws the exception more narrowly than EMTALA’s emergency medical condition definition – that state law is preempted.”27

    On Aug. 2, 2022, the U.S. Department of Justice filed a federal lawsuit challenging an Idaho law criminalizing abortion, arguing it is preempted by EMTALA.28 Providers throughout the country, including Wisconsin, report tension between state restrictions on abortion and providing treatment to patients facing pregnancy complications.29 Such providers must also consider their ethical and legal obligations to meet the standard of care and the risks of committing professional malpractice.

    4) Practicing in other states or sending patients across state lines. Some states close to Wisconsin continue to permit the prescription of medical abortions and the performance of in-clinic abortion procedures.30 Wisconsin providers may wonder whether they can refer patients out of state, be penalized for providing services banned in a patient’s home state, and so on. This article does not address all these possible scenarios, and a nationwide summary is beyond the article’s scope.

    However, other constitutional rights, such as the right of patients to interstate travel, should be considered. Notably, there is no Wisconsin law specifically prohibiting travel to obtain abortion services. Wis. Stat. section 253.105, which predated the Dobbs decision, prohibits out-of-state providers from managing medical abortions via telemedicine by requiring that a physician perform a physical exam and be physically present in the room when an abortion-inducing drug is given.

    Wis. Stat. section 939.05 creates “party to a crime” liability for a person who “[i]ntentionally aids and abets” the commission of a crime or “[i]s a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it.” To face this liability, there must be an underlying crime. Wis. Stat. section 940.04 specifically prohibits conduct by “[a]ny person, other than the mother,” and Wis. Stat. section 940.13 specifically prohibits prosecution of a woman for obtaining an abortion.31 Providing treatment to a pregnant patient after an attempted abortion or helping a pregnant patient find services out of state does not trigger liability because there is no underlying crime. However, collaborating providers could potentially be liable under Wis. Stat. section 939.05 upon violations of Wis. Stat. section 940.04 by at least one such provider. Evidentiary privileges related to the physician-patient relationship32 and state and federal privacy laws may mitigate the practical risk of enforcement. Nonetheless, the contours of these laws and how they relate to one another are not well delineated.

    Providers licensed in multiple states must stay attuned to what is illegal and what constitutes unprofessional conduct in each state in which they practice, because under Wis. Stat. section 448.980(10)(a), “Any disciplinary action taken by any member board against a physician licensed through the compact shall be deemed unprofessional conduct which may be subject to discipline by other member boards, in addition to any violation of the medical practice act or regulations in that state.” Wisconsin Administrative Code section Med 10.03 defines unprofessional conduct to include violation of the laws of Wisconsin and of any other state, when substantially related to the practice of medicine and surgery.


    The legal landscape in Wisconsin on the topic of abortion will continue to evolve in the wake of the Dobbs decision. In the meantime, legal counsel assisting health care providers can provide valuable guidance through the unclear areas.

    Meet Our Contributors

    How did you become interested in health law?

    Angela M. RustMy interest in health care grew out of first-hand experiences with the health care system, including my sister’s serious surgeries as an infant and end-of-life decision-making for a beloved uncle after an iatrogenic injury.  These encounters left me fascinated by the intersection of medicine, ethics, and the law, and drove me to complete a master’s degree in bioethics while in law school.  I’ve considered it a great privilege in my practice to confront the “gray areas” where these disciplines come together to drive new innovation and tackle age-old questions.

    Angela M. Rust, von Briesen & Roper SC, Neenah.

    Become a contributor! Are you working on an interesting case? Have a practice tip to share? There are several ways to contribute to Wisconsin Lawyer. To discuss a topic idea, contact Managing Editor Karlé Lester at Check out our writing and submission guidelines.


    1 Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022), overruling Roe v. Wade, 410 U.S. 113 (1973).

    2 Kaul v. Kapenga, No. 2022-CV-1594 (Wis. Cir. Ct. Dane Cnty.).

    3 Wis. Stat. § 940.04(6).

    4 “Quickening” is not defined in the statute, but it is generally considered to be when a pregnant person starts to feel the movement of a fetus inside the uterus.

    5 Wis. Stat. § 940.04(5).

    6 Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970).

    7 Wis. Stat. §§ 253.107, 253.10(2)(d).

    8 See Wis. Stat. ch. 253.

    9 See, e.g., Joint Statement From Elected Prosecutors (June 24, 2022, updated July 25, 2022), The statement was signed by several prosecutors, including Milwaukee County district attorney John T. Chisholm.

    10 The Dobbs Decision Has Unleashed Legal Chaos for Doctors and Patients (July 2, 2002) (quoting a Milwaukee-based health care provider on these issues),

    11 This judgment is requested specific to the context of consensual abortion because the same statute has been used to prosecute feticide. See, e.g., State v. Black, 188 Wis. 2d 639, 646, 526 N.W.2d 132 (1994) (involving the killing of a near-full-term fetus by domestic violence against the wishes of the pregnant woman). The complaint specifies that it is not seeking a declaration that the statute is unconstitutional in that context.

    12 Kaul, No. 2022-CV-1594,, ¶¶ 30-50.

    13 Black, 188 Wis. 2d at 645.

    14 Bridgit Bowden, Wis. Pub. Radio, What Does the End of Roe Mean for IVF? (July 6, 2022),

    15 Jeannie Baumann, State ‘Personhood’ Laws Threaten Embryonic Stem Cell Research (Aug. 4, 2022), (citing interviews with R. Alta Charo, bioethicist and law professor at UW-Madison, and Bratcher Goodwin, law professor at the University of California, Irvine, both commenting on the legal questions raised when a state statute references conception). Notably, the existing Wisconsin statute is not technically a “personhood” statute, but it does contain restrictions triggered by “conception.”

    16 See, e.g., Roe v. Wade, 410 U.S. 113, 161 (1973) (describing “conception” as “a ‘process’ over time, rather than an event.”).

    17 Notably, Wisconsin Administrative Code section Med 11.02 defines abortion as “the artificial, intentional disruption or removal of the implanted blastocyst, embryo, or fetus from the uterus of a pregnant women by whatever means.” (Emphasis added.)

    18 Justice Thomas’s concurrence stated that “in future cases, we should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” Dobbs, 142 S. Ct. 2228, 2301 (Thomas, J., concurring). Justice Kavanaugh’s concurrence addressed “the question of how this decision will affect other precedents involving issues such as contraception and marriage – in particular, the decisions in Griswold v. Connecticut [, 381 U.S. 479 (1965)],” and stated, “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.” Dobbs, 142 S. Ct. 2228, 2309 (Kavanaugh, J., concurring). In contrast, the dissent argued that “[t]he right Roe and Casey recognized does not stand alone. To the contrary, the Court has linked it for decades to other settled freedoms involving bodily integrity, familial relationships, and procreation. Most obviously, the right to terminate a pregnancy arose straight out of the right to purchase and use contraception … They are all part of the same constitutional fabric, protecting autonomous decision making over the most personal of life decisions. … The majority could write just as long an opinion showing, for example, that until the mid-20th century, ‘there was no support in American law for a constitutional right to obtain [contraceptives].’ … Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.” Id. at 2319 (Breyer, J., Sotomayor, J., and Kagen, J., dissenting) (internal citations omitted).

    19 “None of the other decisions cited by Roe and Casey involved the critical moral question posed by abortion. Accordingly, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way.” Dobbs, 142 S. Ct. at 2258. “To ensure that our decision is not misunderstood or mischaracterized, we emphasize that our decision concerns the constitutional right to abortion and no other right. Nothing in this opinion should be understood to cast doubt on precedents that do not concern abortion.” Dobbs, 142 S. Ct. at 2277–78.

    20 See, for example, the FDA approval application for Yaz, a common combination oral contraceptive,

    21 See, for example, Catholic Med. Ass’n, Statement on Emergency Contraception in Cases of Rape, (Sept. 14, 2015), The statement analyzes the application of the Ethical and Religious Directives for Catholic Health Care Services to the administration of emergency contraceptives and referencing various categories of medication as “contraceptive,” “interceptive,” “contragestive,” or “abortifacient.”

    22 See, e.g.,Carey v. Population Servs. Int’l, 431 U.S. 678, 690 (1977) (“Nor is the interest in protecting potential life implicated in state regulation of contraceptives.”).

    23 U.S. Dep’t of Health & Hum. Servs., Off. for Civ. Rts., Guidance to Nation’s Retail Pharmacies: Obligations under Federal Civil Rights Laws to Ensure Access to Comprehensive Reproductive Health Care Services,

    24 U.S. Dep’t of Health & Hum. Servs., HIPAA Privacy Rule and Disclosures of Information Relating to Reproductive Health Care (last revised June 29, 2022),

    25 Id.

    26 Memorandum from CMS Dirs., Quality, Safety & Oversight Grp. & Survey & Ops. Grp., to State Survey Agency Dirs. (July 11, 2022) (titled “Reinforcement of EMTALA Obligations Specific to Patients Who Are Pregnant or Are Experiencing Pregnancy Loss (QSO-21-22-Hospitals Updated July 2022”),

    27 Id. Whether an individual or institution may be required to perform certain services may involve an analysis of other authority, including “conscience laws” such as Wis. Stat. section 253.09, which is beyond the scope of this article.

    28 United States v. Idaho, No. 1:22-cv-00329-BLW (S.D. Idaho), Complaint (filed Aug. 2, 2022), ¶ 5: “To the extent Idaho’s law prohibits doctors from providing medically necessary treatment, including abortions, that EMTALA requires as emergency medical care, Idaho’s new abortion law directly conflicts with EMTALA. … [and] EMTALA preempts the Idaho law under the Supremacy Clause of the United States Constitution.” On Aug. 24, 2022, Judge B. Lynn Winmill issued an injunction blocking Idaho from enforcing the Idaho abortion law when it conflicts with federal guidance about emergency abortion care in hospitals.

    29 See, e.g., Harris Meyer, Kaiser Health News, Patients and Doctors Trapped in a Gray Zone When Abortion Laws and Emergency Care Mandate Conflict (Aug. 8, 2022),; Lauren Dunn & Kristen Dahlgren, Pregnant Women in States with Abortion Bans Face the Reality of a Post-Roe World (Aug. 8, 2022),

    30 One online platform providing a state-by-state summary is available at

    31 Wis. Stat. section 940.13 states that, “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. …”

    32 See, e.g., Wis. Stat. § 905.04.

    » Cite this article: 95 Wis. Law. 20-25 (September 2022).

Join the conversation! Log in to comment.

News & Pubs Search

Format: MM/DD/YYYY