In Kaul v. Urmanski, (WI Sup. Ct., July 2, 2025), the Wisconsin Supreme Court in a 4-3 decision held that 1849 state law criminalizing abortions has been impliedly repealed by later legislation. The majority said in part:
We conclude that comprehensive legislation enacted over the last 50 years regulating in detail the “who, what, where, when, and how” of abortion so thoroughly covers the entire subject of abortion that it was meant as a substitute for the 19th century near-total ban on abortion. Accordingly, we hold that the legislature impliedly repealed § 940.04(1) as to abortion, and that § 940.04(1) therefore does not ban abortion in the State of Wisconsin....
Chief Justice Karofsky filed a concurring opinion, saying in part:
I agree with the majority’s decision and its analysis. In deciding that the legislature impliedly repealed WIS. STAT. § 940.04(1), the women and children of our state are shielded from the brutal consequences this statute wrought. Yet I write separately because when courts are called upon to arbitrate significant issues in turbulent times such as these, it is incumbent that we pause to reflect on the import of our decisions in the arc of history....
I conclude by elevating the accounts of four women to illustrate the real-world consequences of severe abortion restrictions. I hold these tragedies up to the light in the hope that Wisconsin’s legacy may remain on the side of history that values the health and well-being of all people....
The majority opinion is a jaw-dropping exercise of judicial will, placing personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law. In this dangerous departure from our constitutional design, four members of the court make up and apply their own version of implied repeal, failing to hew to any semblance of traditional judicial decision-making or jurisprudence....
Justice Bradley filed a dissenting opinion, saying in part:
Not content with effacing the law, Chief Justice Jill Karofsky rewrites history, erases and insults women by referring to mothers as “pregnant people,” slanders proponents of the pro-life perspective, and broadcasts dangerously false narratives about laws restricting abortion. Laden with emotion, steeped in myth, and light on the law, the concurrence reads as a parody of progressive politics rather than the opinion of a jurist....
With no apparent sense of irony, the concurrence claims abortion restrictions amount to “death warrants” for women, ignoring the people who feel just as passionately that abortion kills innocent human lives—more than 1,000,000 in each of the last two years. The resolution of this divisive question does not belong with the judiciary. The question of abortion belongs with the People....
Justice Hagedorn, joined by Justice Bradley, filed a dissenting opinion, saying in part:
The Wisconsin Constitution vests the lawmaking power of the people in the state legislature. But today, the Wisconsin Supreme Court effectively deletes a law from the books, taking this power unto itself. Sure, the majority opinion is laden with legal jargon a reader might think reflects a reasoned judicial opinion. Don’t be fooled. This is pure policymaking, driven by antagonism toward a law the majority does not like. The end result is that the policies enacted by the people’s representatives are gone—scratched out with a giant judicial eraser.
Based on its decision in this case, the Wisconsin Supreme Court also dismissed an original action that had asked the Court to interpret the 1849 law as applying only to feticide. Planned Parenthood of Wisconsin v. Urmanski, (WI Sup. Ct., July 2, 2025). See prior posting.
NPR reports on the decisions.