Josh Kaul, et al., v. Joel Urmanski, et al., 2025 WI 32, 7/2/25, on bypass from COA; case activity
In a long-awaited decision, SCOW holds that a criminal statute forbidding abortion cannot be enforced under the doctrine of implied repeal.
Under §940.04, performing an abortion is a felony. In response to SCOTUS’s decision overruling longstanding precedent enshrining a constitutional right to abortion, Attorney General Josh Kaul brought this action seeking a declaratory judgment that this law, which dates from 1849, has been impliedly repealed by subsequent legislative history. (¶3). The respondents are various district attorneys who would be responsible for enforcing the law following the repeal of Roe. (Id.). Canvassing 50 years worth of statutory developments regulating abortion, 4 justices of SCOW (Justice Dallet, author) agrees with the petitioner:
We conclude that, under the unique circumstances presented here, the legislature impliedly repealed § 940.04(1) as to abortion by enacting comprehensive legislation about virtually every aspect of abortion including where, when, and how healthcare providers may lawfully perform abortions. That comprehensive legislation so thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion. As a result, we hold that § 940.04(1) does not prohibit abortion in the State of Wisconsin.
(¶10). “Indeed, these statutes specify, often in extraordinary detail, the answer to nearly every conceivable question about abortion.” (¶23). Accordingly, the Court holds that the petitioners have overcome the strong presumption against implied repeal in these circumstances:
In the end, the comprehensive nature of the last 50 years of legislation about abortion and the incompatibility of those laws with a near-total ban on abortion in § 940.04(1) persuades us that this is the rare situation in which Plaintiffs have overcome the strong presumption against implied repeal. Implied repeal is disfavored for good reason, as it runs contrary to the assumption that the legislature acts with full knowledge of the existing law, and allows the court to do what the legislature did not do expressly: repeal a statute. See Gonnelly, 173 Wis. 2d at 513. But when, as here, the legislature enacts comprehensive legislation that “revise[s] the entire subject to which it relates,” complete with “elaborate inclusions and exclusions of the persons, things and relationships ordinarily associated with the subject,” we must conclude that it impliedly repealed an earlier law that would render those laws all but meaningless. See Wisth, 52 Wis. 2d at 589 (quoting another source).
(¶33).
Chief Justice Karofsky files a concurring opinion, in which she explains her understanding of the history of abortion regulation in America, a history which she believes to be defined by misogyny, racism, and oppression. She also writes to “honor” the stories of women who she asserts have been killed by abortion bans post-Dobbs. For Chief Justice Karofsky, the issue is also personal, as her great-grandmother died from complications occurring after an illegal abortion.
Justice Ziegler files a dissent criticizing what she views as an unlawful aggrandizement by (in her view) a politically-motivated bloc of justices.
Justice Bradley files a lengthy dissent presenting her own understanding of the relevant history, one at odds with the account given by Chief Justice Karofsky.
Finally, Justice Hagedorn files a dissent returning to the issues presented in this appeal, and which criticizes the majority’s legal reasoning.
Having determined that the law on the books is unenforceable, SCOW dismisses a companion case seeking to determine whether the Wisconsin Constitution guarantees a right to abortion.