More than three years after the case was originally filed in Dane County Circuit Court, the Wisconsin Supreme Court, in a 4-3 decision, held that Wis. Stat. § 940.04(1) does not prohibit abortion in Wisconsin. The statute, the majority held, had been impliedly repealed by subsequent legislation that permitted, but regulated, abortion in certain circumstances. The majority decision in Kaul v. Urmanski, authored by Justice Dallet, held that the statutes enacted subsequent to Wis. Stat. § 940.04(1) could not be read in conjunction and that the decision to legislate the “who, what, where, when, and how” of abortion access necessarily meant that the Legislature intended to repeal Wis. Stat. § 940.04(1). Therefore, the majority held that Wis. Stat. § 940.04(1) was repealed and does not criminalize abortion in Wisconsin.
Abortion Rights Through June 2022
Section 940.04(1) states, “[a]ny person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.” The statute was held unconstitutional after the Supreme Court of the United States issued its landmark ruling in 1973, Roe v. Wade.
After the Roe decision, the Wisconsin Legislature enacted and amended a series of statutes that had the effect of permitting abortion within the state, subject to certain restrictions and regulations. For example, in 1985, the Wisconsin Legislature enacted Wis. Stat. § 940.15, which criminalized abortion after viability. In 1991, Wis. Stat. § 48.375 was enacted and provided a comprehensive framework requiring parental consent or court order for abortions performed on non-emancipated minors. In 1997, the Wisconsin Legislature enacted Wis. Stat. § 940.17, which criminalized partial-birth abortions. Various other statutes were enacted over the years imposing abortion regulations and restrictions, including things like mandating voluntary and informed consent prior to abortions (Wis. Stat. § 253.10), requiring physicians performing abortions to have hospital privileges within 30 miles of the location where an abortion is to be performed (Wis. Stat. § 253.095), and restricting use of government funds for abortion services (Wis. Stat. § 66.0601(1)(c)).
In June 2022, the Supreme Court of the United States issued its decision in Dobbs v. Jackson Women’s Health Organization and overruled Roe. The majority in Dobbs held that the right to an abortion was not, as held by prior Supreme Court decisions including Roe and Planned Parenthood of Southeastern Pennsylvania v. Casey, implicitly protected by the Fourteenth Amendment of the Constitution. The Dobbs decision had the effect of sending the question of abortion access and rights back to each of the states. Dobbs also had the effect of, as some argued, making Wis. Stat. § 940.04(1) enforceable once again, which prompted a legal challenge by the Wisconsin Attorney General.
June 2022: Wisconsin Attorney General Files Suit
Just four days after the Supreme Court issued its decision in Dobbs, Wisconsin Attorney General Josh Kaul, along with the Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board, and its chairperson brought an action in Dane County Circuit Court seeking a declaratory judgment that Wis. Stat. § 940.04(1) did not ban abortion in Wisconsin. Specifically, they argued that the statute either did not apply to abortion (rather, it applied only to feticide) or that the statute had been impliedly repealed by subsequent statutes. The purpose of the suit was to obtain an order that prevents the enforcement of Wis. Stat. § 940.04(1).
In December 2022, the Dane County Circuit Court issued a decision that held Wis. Stat. § 940.04(1) did not ban abortion because the statute had been interpreted as not applying to abortions. Rather, the Circuit Court held, the statute only prohibited feticide.
The Circuit Court’s decision was appealed and, in July 2024, the Wisconsin Supreme Court agreed to hear the case.
The Wisconsin Supreme Court Decision
In its July 2025 decision, the Wisconsin Supreme Court addressed both arguments raised by Kaul and the plaintiffs but ultimately concluded that Kaul’s second argument –Wis. Stat. § 940.04(1) was implied repealed – was dispositive. The majority decision holding was succinctly summarized in paragraph 10 of the decision:
“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.”
In other words, the majority concluded that the various legislation regulating abortion after Roe had the effect of repealing the total prohibition imposed by Wis. Stat. § 940.04(1). The majority held that the various pieces of legislation that had been enacted over the years detailed the “who, what, where, when, and how” that covered the entire subject of abortion in Wisconsin and, therefore Wis. Stat. § 940.04(1) was repealed by implication.
The majority decision recognized the rarity with which repeal by implication is utilized but concluded that Wis. Stat. § 940.04(1) simply could not be read in conjunction with the various other statutes subsequently enacted that contradicted Wis. Stat. § 940.04(1). For example, the majority noted there would be no need for legislation that criminalized partial-birth abortions or abortions after 20 weeks if, indeed, all abortion was criminalized under Wis. Stat. § 940.04(1). As another example, the majority noted that if Wis. Stat. § 940.04(1) did still indeed criminalize all abortions, numerous statutes that allowed for state, county, or municipal funding to be used for abortions would, in essence, be funding criminal action. All of this, the majority concluded, lead to the sole conclusion that Wis. Stat. § 940.04(1) was impliedly repealed with the subsequent enactments of various comprehensive statutes regulating abortion.
Concurrences and Dissents
Chief Justice Karofsky issued a concurring opinion, and Justices Ziegler, Hagedorn, and Rebecca Grassl Bradley issued dissenting opinions. The concurring opinion by Chief Justice Karofsky and the dissenting opinions by Justice Ziegler and Justice Rebecca Grassl Bradley emphasized the political nature of the dispute and discussed the role of the Wisconsin Supreme Court as it pertained to the issue at hand.
Justice Hagedorn’s dissenting opinion was cited by the two other dissenting Justices and provided an analytical discussion of the difference in legal opinions between the majority and the dissent. In his dissent, Justice Hagedorn argued that Wis. Stat. § 940.04(1) has not been impliedly repealed for a number of reasons. First, he argued, there was no singular enactment of legislation that comprehensively revised the entirety of Wis. Stat. § 940.04(1). He argues that the majority’s conclusion – that various pieces of legislation over the span of 50 years – is incongruent with caselaw on implied repeal of legislation and makes it difficult (if not impossible) to conclusively identify when Wis. Stat. § 940.04(1) was repealed. Second, Justice Hagedorn argued that Wis. Stat. § 940.04(1) was not, in fact, incongruent with various statutes. He argued that overlapping criminal statutes are permissible and would not render the broader criminal statute (Wis. Stat. § 940.04(1)) surplusage. Finally, Justice Hagedorn argued that the evidence demonstrates that the Wisconsin Legislature did not intend to repeal Wis. Stat. § 940.04(1) because the Legislature amended the statute numerous times in the last two decades. Had the Legislature intended to repeal the statute, those amendments would not have occurred.
Current State of Affairs
As it stands, Wis. Stat. § 940.04(1) has been repealed by the Wisconsin Supreme Court and is no longer enforceable. However, numerous other statutes regulating abortion in Wisconsin remain in effect. These laws govern aspects such as the timing of the procedure, informed consent requirements, authorized providers, and funding restrictions. While the overarching criminal prohibition has been effectively eliminated, the regulatory framework surrounding abortion remains intact.