Josh Kaul v. Joel Urmanski, as DA for Sheboygan County, WI
2025 WI 32 (2025)
Sections
Rule of Law:
The doctrine of implied repeal provides that an earlier statute is unenforceable when the legislature enacts a subsequent comprehensive statutory scheme regulating the same subject matter that is inconsistent with the earlier law and clearly intended as a substitute.
Facts:
- In 1849, the Wisconsin legislature enacted a statute, now codified as § 940.04(1), which criminalized the intentional destruction of the life of an unborn child.
- For over a century, this statute was utilized to prosecute individuals performing abortions.
- In 1973, the U.S. Supreme Court decision in Roe v. Wade rendered § 940.04(1) unenforceable.
- Over the subsequent 50 years, the Wisconsin legislature enacted numerous laws regulating the specific circumstances of lawful abortions, including viability limits, waiting periods, informed consent protocols, and facility requirements.
- In 2022, the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization, overturning Roe v. Wade and returning abortion regulation to the states.
- Following the Dobbs decision, medical providers in Wisconsin ceased providing abortion services due to uncertainty regarding the enforceability of the 1849 statute.
- State officials and medical professionals disagreed on whether the 1849 law automatically sprang back into effect as a total ban or if the post-1973 regulations governed.
Procedural Posture:
- Plaintiffs (Attorney General and physicians) filed a declaratory judgment action in the Dane County Circuit Court against the Defendant District Attorneys.
- The Defendant (Urmanski) moved to dismiss the case for failure to state a claim.
- The Dane County Circuit Court denied the Defendant's motion to dismiss.
- The Dane County Circuit Court subsequently granted summary judgment in favor of the Plaintiffs, declaring that § 940.04 does not prohibit consensual medical abortions.
- Defendant Urmanski appealed the judgment directly to the higher courts.
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Issue:
Does Wisconsin Statute § 940.04(1), enacted in 1849, constitute an enforceable total ban on abortion, or has it been impliedly repealed by subsequent comprehensive legislation regulating abortion?
Opinions:
Majority - Justice Dallet
No, the statute does not ban abortion because it has been impliedly repealed by a comprehensive legislative scheme. The Court reasoned that over the last 50 years, the legislature enacted a vast array of statutes regulating the 'who, what, where, when, and how' of lawful abortions. These newer statutes, which include restrictions based on viability and 20-week gestational limits, would be rendered meaningless if § 940.04(1) were interpreted as a total ban. The Court concluded that this comprehensive regulatory framework was intended to cover the entire subject of abortion and therefore acts as a substitute for the 1849 prohibition.
Concurring - Chief Justice Karofsky
No, the statute is no longer applicable to abortion. While agreeing with the majority's implied repeal analysis, the writing emphasizes the historical context of abortion rights and the severe consequences of enforcing a near-total ban. The concurrence argues that interpreting the statute as a ban would strip women of dignity and authority over their own bodies, citing historical data suggesting abortion was accessible at the time of the nation's founding and highlighting modern stories of women harmed by strict abortion bans.
Dissenting - Justice Ziegler
Yes, the statute remains a valid prohibition on abortion. The dissent argues that the majority is engaging in judicial activism by essentially legislating from the bench to achieve a desired policy outcome. The dissent points out that the legislature amended § 940.04 as recently as 2001 and 2011 and referenced it in other statutes in 2015, which demonstrates that the legislature never intended to repeal the law.
Dissenting - Justice Rebecca Grassl Bradley
Yes, the statute prohibits abortion and should be enforced. The dissent criticizes the majority for usurping the legislature's role due to political motivations. It further disputes the historical narrative presented in the concurrence, arguing that the common law has historically treated abortion as a crime and that the Court should adhere strictly to the text of the law rather than policy preferences.
Dissenting - Justice Hagedorn
Yes, the statute is still the law because implied repeal requires clear legislative intent that is absent here. The dissent argues that the newer regulations cited by the majority were enacted specifically to comply with the Roe v. Wade framework, not to legalize abortion generally. Furthermore, because the legislature explicitly amended and referenced § 940.04 long after passing those regulations, it is legally impossible to conclude that the legislature intended to repeal it.
Analysis:
This decision effectively restores abortion access in Wisconsin to the status quo that existed prior to the overturning of Roe v. Wade, limited only by the modern regulations enacted by the state legislature (such as the 20-week ban). Legally, the case expands the application of the 'implied repeal' doctrine. Typically, implied repeal is disfavored and used only when two laws are irreconcilably conflicting. Here, the Court applied a broader 'comprehensive scheme' approach, finding that a density of regulations on a topic can override an older, absolute prohibition even without an explicit legislative repeal. This sets a significant precedent for how courts may interpret dormant statutes that conflict with modern regulatory frameworks.
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