2003 - 2004 LEGISLATURE

ASSEMBLY SUBSTITUTE AMENDMENT 1, TO 2003 ASSEMBLY BILL 67

April 21, 2003 -

 Offered by Representative HUNDERTMARK.

AN ACT to renumber and amend 111.337 (1), 253.09 (1), 441.06 (6) and 448.03 (5) (a); to amend 154.03 (1) (intro.), 155.60 (3), 253.09 (title), 253.09 (2), 253.09(3), 253.09 (4) (a), 253.09 (4) (b) 1., 253.09 (4) (b) 2., 441.06 (title) and 448.03 (5)(title); and to create 111.337 (1g), 111.337 (1r) (b), 253.09 (1g), 253.09 (1r) (a)1. to 8., 253.09 (5), 441.06 (6) (a), 441.06 (6) (b) 1. to 8., 441.06 (7), 441.06 (8),448.03 (5) (ag), 448.03 (5) (am) 1. to 8., 448.03 (5) (ao), 448.03 (5) (ar) and450.135 of the statutes; relating to: employment discrimination based on creed; exemption from liability and discipline for health care providers and hospital employees who refuse to participate in sterilization, abortion, assisted suicide, and other procedures on moral or religious grounds; and power of attorney for health care instruments and patient declarations regarding the withholding or withdrawal of life-sustaining procedures or feeding tubes.

The people of the state of Wisconsin, represented in senate and assembly, do enact as follows:

SECTION 1

SECTION 1. 111.337 (1) of the statutes is renumbered 111.337 (1r) (intro.) and amended to read:

111.337 (1r) (intro.) Employment discrimination because of creed includes, but is not limited to, refusing any of the following:

(a) Refusing to reasonably accommodate an employee's or prospective employee's religious observance or practice unless the employer can demonstrate that the accommodation would pose an undue hardship on the employer's program, enterprise, or business.

SECTION 2. 111.337 (1g) of the statutes is created to read:

111.337 (1g) In this section:

(a) "Human embryo" means a human organism that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells. "Human embryo" includes a zygote but does not include a human organism at or beyond the stage of development at which the major body structures are present.

(b) "In vitro human embryo" means a human embryo, whether cryopreserved or not, living outside of a woman's body.

(c) "Participate in" means to perform; practice; engage in; assist in; recommend; counsel in favor of; make referrals for; prescribe, dispense, or administer drugs or devices, other than contraceptive articles, as defined in s. 450.155 (1) (a), for; or otherwise promote, encourage, or aid.

SECTION 3. 111.337 (1r) (b) of the statutes is created to read:

111.337 (1r) (b) Discriminating against an employee or prospective employee by engaging in any of the actions prohibited under s. 111.322 on the basis of the employee's or prospective employee's refusal, or statement of an intention to refuse, whether or not in writing, based on his or her creed, to participate in any of the following:

1. A sterilization procedure.

2. An abortion, as defined in s. 253.10 (2) (a).

3. An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo.

4. An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo.

5. An experiment or medical procedure on a developing child in a natural or artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child.

6. A procedure, including a transplant procedure, that uses fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage.

7. The withholding or withdrawal of nutrition or hydration, if the withholding or withdrawal of nutrition or hydration would result in the patient's death from malnutrition or dehydration, or complications of malnutrition or dehydration, rather than from the underlying terminal illness or injury, unless the administration of nutrition or hydration is medically contraindicated.

8. An act that intentionally causes or assists in causing the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.

SECTION 4. 154.03 (1) (intro.) of the statutes is amended to read:

154.03 (1) (intro.) Any person of sound mind and 18 years of age or older may at any time voluntarily execute a declaration, which shall take effect on the date of execution, authorizing the withholding or withdrawal of life-sustaining procedures or of feeding tubes when the person is in a terminal condition or is in a persistent vegetative state. A declarant may not authorize the withholding or withdrawal of any medication, life-sustaining procedure, or feeding tube if the declarant's attending physician advises that, in his or her professional judgment, the withholding or withdrawal will cause the declarant pain or reduce the declarant's comfort and the pain or discomfort cannot be alleviated through pain relief measures. A declarant may not authorize the withholding or withdrawal of nutrition or hydration that is administered or otherwise received by the declarant through means other than a feeding tube unless the declarant's attending physician advises that, in his or her professional judgment, the administration is medically contraindicated. A declaration must be signed by the declarant in the presence of 2 witnesses. If the declarant is physically unable to sign a declaration, the declaration must be signed in the declarant's name by one of the witnesses or some other person at the declarant's express direction and in his or her presence; such a proxy signing shall either take place or be acknowledged by the declarant in the presence of 2 witnesses. The declarant is responsible for notifying his or her attending physician of the existence of the declaration. An attending physician who is so notified shall immediately review the declaration and, if the physician intends to invoke his or her rights under s. 253.09, shall, as soon as possible, inform the declarant orally and in writing of that intent and of the physician's concerns, if any, about the declaration. An attending physician who is so notified shall also make the declaration a part of the declarant's medical records. No witness to the execution of the declaration may, at the time of the execution, be any of the following:

SECTION 5. 155.60 (3) of the statutes is amended to read:

155.60 (3) Upon receipt of a power of attorney for health care instrument or a statement of incapacity under s. 155.05 (2), a health care facility or health care provider shall acknowledge this receipt in writing and, if the principal is a patient of the health care provider, the health care provider shall include the instrument or the statement in the medical record of the principal. In addition, if the health care provider is a physician and the principal is a patient of the physician, the physician shall immediately review the instrument or statement and, if the physician intends to invoke his or her rights under s. 253.09, shall, as soon as possible, inform the principal orally and in writing of that intent and of the physician's concerns, if any, about the instrument or statement.

SECTION 6. 253.09 (title) of the statutes is amended to read:

253.09 (title) Refusal to participate in certain practices; no liability; no discrimination.

SECTION 7. 253.09 (1) of the statutes is renumbered 253.09 (1r) (a) (intro.) and amended to read:

253.09 (1r) (a) (intro.) No hospital shall be is required to admit any patient or to allow the use of the hospital facilities for the purpose of performing any of the following:

(b) A physician or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital in which the performance of an activity specified in par. (a) 1. to 8. has been authorized, who, in writing, refuses, or states an intention to refuse, to participate in the activity on moral or religious grounds may not be required to participate in the activity.

(c) A physician or any other person who is a member of or associated with the staff of a hospital, or any employee of a hospital, is immune from liability for any damage caused by, and may not be subjected to any disciplinary or recriminatory action based on, the refusal of any such the person to participate in an activity specified in par. (a) 1. to 8. on moral or religious grounds.

SECTION 8. 253.09 (1g) of the statutes is created to read:

253.09 (1g) In this section:

(a) "Human embryo" means a human organism that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells. "Human embryo" includes a zygote but does not include a human organism at or beyond the stage of development at which the major body structures are present.

(b) "In vitro human embryo" means a human embryo, whether cryopreserved or not, living outside of a woman's body.

(c) "Participate in" means to perform; practice; engage in; assist in; recommend; counsel in favor of; make referrals for; prescribe, dispense, or administer drugs or devices, other than contraceptive articles, as defined in s. 450.155 (1) (a), for; or otherwise promote, encourage, or aid.

SECTION 9. 253.09 (1r) (a) 1. to 8. of the statutes are created to read:

253.09 (1r) (a) 1. A sterilization procedure.

2. An abortion, as defined in s. 253.10 (2) (a).

3. An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo.

4. An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo.

5. An experiment or medical procedure on a developing child in a natural or artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child.

6. A procedure, including a transplant procedure, that uses fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage.

7. The withholding or withdrawal of nutrition or hydration, if the withholding or withdrawal of nutrition or hydration would result in the patient's death from malnutrition or dehydration, or complications of malnutrition or dehydration, rather than from the underlying terminal illness or injury, unless the administration of nutrition or hydration is medically contraindicated.

8. An act that intentionally causes or assists in causing the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.

SECTION 10. 253.09 (2) of the statutes is amended to read:

253.09 (2) A hospital or employee of any a hospital is immune from liability for any damage caused by a refusal to participate in an activity specified in sub. (1r) (a) 1. to 8., if the refusal is based on religious or moral precepts.

SECTION 11. 253.09 (3) of the statutes is amended to read:

253.09 (3) No hospital, school, or employer may discriminate against any person with regard to admission, hiring or firing, tenure, term, condition, or privilege of employment, student status, or staff status on the ground that the person refuses or states an intention to refuse, whether or not in writing, to participate in an activity specified in sub. (1r) (a) 1. to 8., if the refusal is based on religious or moral precepts.

SECTION 12. 253.09 (4) (a) of the statutes is amended to read:

253.09 (4) (a) Such individual to participate in an activity specified in sub. (1r) (a) 1. to 8., if the individual's performance or assistance participation in the activity is contrary to the individual's religious beliefs or moral convictions; or

SECTION 13. 253.09 (4) (b) 1. of the statutes is amended to read:

253.09 (4) (b) 1. Make its facilities available for an individual to participate in an activity specified in sub. (1r) (a) 1. to 8., if the entity prohibits the activity from taking place in the facilities on the basis of religious beliefs or moral convictions; or

SECTION 14. 253.09 (4) (b) 2. of the statutes is amended to read:

253.09 (4) (b) 2. Provide any personnel to participate in an activity specified in sub. (1r) (a) 1. to 8., if the activity is contrary to the religious beliefs or moral convictions of the personnel.

SECTION 15. 253.09 (5) of the statutes is created to read:

253.09 (5) (a) In this subsection, "damages" do not include noneconomic damages, as defined in s. 893.55 (4) (a).

(b) Except for claims that are subject to s. 111.321 or 111.322, a person who is adversely affected by conduct that is in violation of this section may bring a civil action for equitable relief, including reinstatement, or damages, or both. In an action under this paragraph, the court shall award reasonable attorney fees, notwithstanding s. 814.04 (1), to a person who obtains equitable relief, damages, or both. An action under this paragraph shall be commenced within one year after the cause of action accrues or be barred.

SECTION 16. 441.06 (title) of the statutes is amended to read:

441.06 (title) Licensure; civil liability and disciplinary exemption.

SECTION 17. 441.06 (6) of the statutes is renumbered 441.06 (6) (b) (intro.) and amended to read:

441.06 (6) (b) (intro.) A person licensed as a registered nurse under this section or as a practical nurse under s. 441.10 is immune from liability for any damage caused by his or her refusal to participate in any of the following, if the refusal is based on religious or moral precepts:

SECTION 18. 441.06 (6) (a) of the statutes is created to read:

441.06 (6) (a) In this subsection:

1. "Human embryo" means a human organism that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells. "Human embryo" includes a zygote but does not include a human organism at or beyond the stage of development at which the major body structures are present.

2. "In vitro human embryo" means a human embryo, whether cryopreserved or not, living outside of a woman's body.

3. "Participate in" means to perform; practice; engage in; assist in; recommend; counsel in favor of; make referrals for; prescribe, dispense, or administer drugs or devices, other than contraceptive articles, as defined in s. 450.155 (1) (a), for; or otherwise promote, encourage, or aid.

SECTION 19. 441.06 (6) (b) 1. to 8. of the statutes are created to read:

441.06 (6) (b) 1. A sterilization procedure.

2. An abortion, as defined in s. 253.10 (2) (a).

3. An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo.

4. An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo.

5. An experiment or medical procedure on a developing child in a natural or artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child.

6. A procedure, including a transplant procedure, that uses fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage.

7. The withholding or withdrawal of nutrition or hydration, if the withholding or withdrawal of nutrition or hydration would result in the patient's death from malnutrition or dehydration, or complications of malnutrition or dehydration, rather than from the underlying terminal illness or injury, unless the administration of nutrition or hydration is medically contraindicated.

8. An act that intentionally causes or assists in causing the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.

SECTION 20. 441.06 (7) of the statutes is created to read:

441.06 (7) A person licensed as a registered nurse under this section or as a practical nurse under s. 441.10 who, in writing, refuses, or states an intention to refuse, on moral or religious grounds to participate in a practice of practical or professional nursing that is related to an activity specified in sub. (6) (b) 1. to 8. may not be required to participate in the practice with respect to the activity and may not be disciplined by the board or the department for refusing or stating an intention to refuse to participate in the practice with respect to the activity.

SECTION 21. 441.06 (8) of the statutes is created to read:

441.06 (8) (a) In this subsection, "damages" do not include noneconomic damages, as defined in s. 893.55 (4) (a).

(b) Except for claims that are subject to s. 111.321 or 111.322, a person who is adversely affected by conduct that is in violation of sub. (7) may bring a civil action for equitable relief, including reinstatement, or damages, or both. In an action under this paragraph, the court shall award reasonable attorney fees, notwithstanding s.814.04 (1), to a person who obtains equitable relief, damages, or both. An action under this paragraph shall be commenced within one year after the cause of action accrues or be barred.

SECTION 22. 448.03 (5) (title) of the statutes is amended to read:

448.03 (5) (title) CIVIL LIABILITY AND DISCIPLINARY EXEMPTION; CERTAIN MEDICAL PROCEDURES AND REPORTS.

SECTION 23. 448.03 (5) (a) of the statutes is renumbered 448.03 (5) (am) (intro.) and amended to read:

448.03 (5) (am) (intro.) A person licensed or certified under this subchapter is immune from liability for any damage caused by the person's refusal to participate in any of the following if the refusal is based on religious or moral precepts:

SECTION 24. 448.03 (5) (ag) of the statutes is created to read:

448.03 (5) (ag) In this subsection:

1. "Human embryo" means a human organism that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells. "Human embryo" includes a zygote but does not include a human organism at or beyond the stage of development at which the major body structures are present.

2. "In vitro human embryo" means a human embryo, whether cryopreserved or not, living outside of a woman's body.

3. "Participate in" means to perform; practice; engage in; assist in; recommend; counsel in favor of; make referrals for; prescribe, dispense, or administer drugs or devices, other than contraceptive articles, as defined in s. 450.155 (1) (a), for; or otherwise promote, encourage, or aid.

SECTION 25. 448.03 (5) (am) 1. to 8. of the statutes are created to read:

448.03 (5) (am) 1. A sterilization procedure.

2. An abortion, as defined in s. 253.10 (2) (a).

3. An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo.

4. An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo.

5. An experiment or medical procedure on a developing child in a natural or artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child.

6. A procedure, including a transplant procedure, that uses fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage.

7. The withholding or withdrawal of nutrition or hydration, if the withholding or withdrawal of nutrition or hydration would result in the patient's death from malnutrition or dehydration, or complications of malnutrition or dehydration, rather than from the underlying terminal illness or injury, unless the administration of nutrition or hydration is medically contraindicated.

8. An act that intentionally causes or assists in causing the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.

SECTION 26. 448.03 (5) (ao) of the statutes is created to read:

448.03 (5) (ao) A person licensed or certified under this subchapter who, in writing, refuses, or states an intention to refuse, on moral or religious grounds to participate in a practice within the scope of his or her license or certification that is related to an activity specified in par. (am) 1. to 8. may not be required to participate in the practice with respect to the activity and, notwithstanding ss. 154.07 (1) (a) 3. and 155.50 (1) (b), may not be disciplined by the board or the department for refusing or stating an intention to refuse to participate in the practice with respect to the activity, including refusing or stating an intention to refuse to transfer a patient to another physician who will comply with a declaration, as defined in s. 154.02 (1), instrument for power of attorney for health care, as defined in s. 155.01 (10), or health care decision, as defined in s. 155.01 (5), of a health care agent, as defined in s. 155.01 (4). This paragraph does not apply to the refusal to make a good faith attempt to transfer a declarant with incapacity, as defined in s. 155.01 (8) and with a terminal condition, as defined in s. 154.01 (8), to another physician who will comply with the declaration, as defined in s. 154.02 (1), of the declarant.

SECTION 27. 448.03 (5) (ar) of the statutes is created to read:

448.03 (5) (ar) 1. In this paragraph, "damages" do not include noneconomic damages, as defined in s. 893.55 (4) (a).

2. Except for claims that are subject to s. 111.321 or 111.322, a person who is adversely affected by conduct that is in violation of par. (ao) may bring a civil action for equitable relief, including reinstatement, or damages, or both. In an action under this subdivision, the court shall award reasonable attorney fees, notwithstanding s.814.04 (1), to a person who obtains equitable relief, damages, or both. An action under this subdivision shall be commenced within one year after the cause of action accrues or be barred.

SECTION 28. 450.135 of the statutes is created to read:

450.135 Pharmacist's refusal to participate in certain activities. (1) In this section:

(a) "Human embryo" means a human organism that is derived by fertilization, parthenogenesis, cloning, or any other means from one or more human gametes or human diploid cells. "Human embryo" includes a zygote but does not include a human organism at or beyond the stage of development at which the major body structures are present.

(b) "In vitro human embryo" means a human embryo, whether cryopreserved or not, living outside of a woman's body.

(c) "Participate in" means to perform; practice; engage in; assist in; recommend; counsel in favor of; make referrals for; prescribe, dispense, or administer drugs or devices, other than contraceptive articles, as defined in s. 450.155 (1) (a), for; or otherwise promote, encourage, or aid.

(2) A person licensed as a pharmacist under this chapter is immune from liability for any damage caused by his or her refusal to participate in any of the following, if the refusal is based on religious or moral precepts:

(a) A sterilization procedure.

(b) An abortion, as defined in s. 253.10 (2) (a).

(c) An experiment or medical procedure that destroys an in vitro human embryo or uses cells or tissue derived from the destruction of an in vitro human embryo.

(d) An experiment or medical procedure on an in vitro human embryo that is not related to the beneficial treatment of the in vitro human embryo.

(e) An experiment or medical procedure on a developing child in a natural or artificial womb, at any stage of development, that is not related to the beneficial treatment of the developing child.

(f) A procedure, including a transplant procedure, that uses fetal tissue or organs other than fetal tissue or organs from a stillbirth, spontaneous abortion, or miscarriage.

(g) The withholding or withdrawal of nutrition or hydration, if the withholding or withdrawal of nutrition or hydration would result in the patient's death from malnutrition or dehydration, or complications of malnutrition or dehydration, rather than from the underlying terminal illness or injury, unless the administration of nutrition or hydration is medically contraindicated.

(h) An act that intentionally causes or assists in causing the death of an individual, such as by assisted suicide, euthanasia, or mercy killing.

(3) (a) A person licensed as a pharmacist under this chapter who, in writing, refuses, or states an intention to refuse, on moral or religious grounds to participate in a practice of pharmacy that is related to an activity specified in sub. (2) (a) to (h) may not be required to participate in the practice with respect to the activity and may not be disciplined by the board or department for refusing or stating an intention to refuse to participate in the practice with respect to the activity.

(b) 1. In this paragraph, "damages" do not include noneconomic damages, as defined in s. 893.55 (4) (a).

2. Except for claims that are subject to s. 111.321 or 111.322, a person who is adversely affected by conduct that is in violation of par. (a) may bring a civil action for equitable relief, including reinstatement, or damages, or both. In an action under this subdivision, the court shall award reasonable attorney fees, notwithstanding s. 814.04 (1), to a person who obtains equitable relief, damages, or both. An action under this subdivision shall be commenced within one year after the cause of action accrues or be barred.

SECTION 29.0 Initial applicability.

(1) The treatment of sections 111.337 (1), (1g), and (1r) (b), 253.09 (title), (1), (1g), (1r) (a) 1. to 8., (2), (3), (4) (a) and (b) 1. and 2., and (5), 441.06 (title), (7), and (8), 448.03 (5) (title), (a), (ag), (am) 1. to 8., (ao), and (ar), and 450.135 of the statutes, the renumbering and amendment of section 441.06 (6) of the statutes, and the creation of section 441.06 (6) (a) and (b) 1. to 8. of the statutes first apply to refusals or statements of an intention to refuse that are made on the effective date of this subsection.

(2) The treatment of section 154.03 (1) of the statutes first applies to notifications made on the effective date of this subsection.

(3) The treatment of section 155.60 (3) of the statutes first applies to power of attorney for health care instruments and statements of incapacity received on the effective date of this subsection.