pre-Roe statute prohibited the performance of an abortion
unless the procedure was “necessary to save the life of the
mother.” In Babbitz
v. McCann, a
three-judge federal district court declared the statute unconstitutional,
insofar as it prohibited abortions before quickening (16-18
weeks gestation). The same court thereafter permanently enjoined
enforcement of the statute. That
injunction, however, was subsequently vacated by the Supreme
Court. The pre-Roe statute,
which has not been repealed, would
be enforceable if Roe v. Wade were overruled.
Wis. Stat. Ann. § 940.04 (1969). Under
subsection (3), “[a]ny pregnant woman who intentionally
destroy[ed] the life of her unborn child or who consents
to such destruction by another” was guilty of a misdemeanor. No
prosecutions were reported under this subsection.
293 (E.D. Wis. 1970), appeal dismissed, 400 U.S.1
Babbitz v. McCann, 320 F.Supp. 219 (E.D. Wis. 1970).
McCann v. Babbitz, 402 U.S. 903 (1971).
Wis. Stat. Ann. § 940.04 (West 1996 & Supp.
2004). The Wisconsin Supreme Court has held that § 940.04
has not been repealed by implication with enactment of
post-Roe statutes regulating abortion. See State
v. Black, 526 N.W.2d 132, 134-35 (Wis. 1994).
from the pre-Roe statute, it is unlikely that Wisconsin’s
post-viability statute, see Wis.
Stat. Ann. § 940.15 (West Supp. 2004), would effectively
prohibit post-viability abortions because it allows such
abortions to preserve the pregnant woman’s life or health,
health not being defined in the statute. In interpreting
the undefined health exception in the pre-Roe District
of Columbia abortion statute, the Supreme Court held that “the general usage and modern understanding of the word ‘health’ .
. . includes psychological as well as physical well-being.” United
States v. Vuitch, 402 U.S. 62, 72 (1971). See also
Doe v. Bolton, 410 U.S. 179, 192 (1973) (in determining
whether an abortion is medically necessary, “all factors– physical,
emotional, psychological, familial, and the woman’s age–relevant
to the well-being of the patient” may be considered). There
would be few, if any, abortions that could not be justified
on psychological or emotional grounds.