Implied-Repeal-by-Substitution: Wisconsin Supreme Court Dispenses with the 1849 Abortion Ban in Josh Kaul v. Urmanski (2025 WI 32)

1. Introduction

The Wisconsin Supreme Court’s decision in Josh Kaul v. Joel Urmanski, et al., 2025 WI 32, is the most significant state-level abortion ruling rendered since the U.S. Supreme Court’s 2022 judgment in Dobbs v. Jackson Women’s Health Organization. In a post-Dobbs landscape—where Roe’s federal shield vanished and long-dormant criminal bans roared back to life—Wisconsin’s 1849 statute (§ 940.04) loomed over physicians, patients, and prosecutors alike. Attorney General Josh Kaul, several state agencies, and three physicians sought declaratory relief, arguing that decades of subsequent abortion-related legislation implicitly displaced the antiquated ban. A fractured Wisconsin Supreme Court (4-3) agreed, pronouncing that the legislature “impliedly repealed” the 19th-century near-total prohibition because later enactments so comprehensively regulate “the who, what, where, when, and how” of abortion that they stand as a legislative substitute for § 940.04(1).

The judgment sets a new and controversial precedent on (i) the limits of judicially recognised implied repeal, (ii) the status of pre-Roe criminal prohibitions, and (iii) the continuing separation-of-powers tug-of-war over abortion policy after Dobbs. It has immediate operational consequences: elective abortions, long suspended in Wisconsin, may now legally resume subject to the narrower post-1973 regulations still on the books.

2. Summary of the Judgment

• Majority Opinion (Dallet, J., joined by Karofsky, C.J., A.W. Bradley & Protasiewicz, JJ.)
  • Holds that § 940.04(1) does not ban abortion because it was “impliedly repealed” by about fifty years of “comprehensive legislation” governing abortion.
  • Distinguishes between two strands of implied repeal—(a) irreconcilable conflict and (b) comprehensive-substitution—and chooses the latter.
  • Reasons that newer statutes criminalising only certain abortions (post-viability, >20 weeks, partial birth) and extensive regulatory provisions (parental-consent, informed-consent, ultrasound, admitting privileges, public-funding limitations, etc.) would be “rendered meaningless” if § 940.04 remained enforceable.
  • Concludes the legislature “clearly meant” the modern scheme to supplant the 1849 law, even though the legislature never expressly repealed it.
• Concurring Opinion (Karofsky, C.J.)
  • Frames the ruling as a victory for “dignity and autonomy” of women.
  • Provides an extensive historical and sociological narrative of abortion in the United States, criticises abortion restrictions as “death warrants,” and recounts anecdotal tragedies under post-Dobbs bans.
• Dissents
  • Ziegler, J.: Condemns the majority for a “jaw-dropping exercise of judicial will,” arguing that the substitution-type implied-repeal doctrine cannot be stretched to a patchwork of statutes.
  • R.G. Bradley, J.: Accuses the majority of rewriting the law for policy reasons; offers a counter-history of abortion and argues that democratic law-making has been subverted.
  • Hagedorn, J. (joined by R.G. Bradley): Undertakes a granular statutory analysis, concluding that legislative amendments as recent as 2015 expressly presuppose the validity of § 940.04; maintains that a court cannot infer repeal where the legislature repeatedly adjusted—rather than deleted—the statute.

3. Analysis

3.1 Precedents Cited

The majority leans heavily on Wisconsin’s 1878 decision State v. Campbell (44 Wis. 529) and later formulations in Wisth v. Mitchell (52 Wis. 2d 584, 1971). Those cases recognise that an entirely new, comprehensive enactment can impliedly repeal an older one if it “covers the whole subject” and is “clearly meant as a substitute.” Nationally, the opinion cites McCorvey v. Hill (5th Cir. 2004) and a 2023 Guam case—both post-Roe attempts to deactivate dormant bans. The dissenters, however, underscore the U.S. Supreme Court’s modern hostility to implied repeals (Branch v. Smith, 538 U.S. 254 (2003)) and Wisconsin’s own insistence that repeal must be “clear and manifest” (State v. Dairyland Power, 52 Wis. 2d 45 (1971)).

3.2 Legal Reasoning

1. Statutory Landscape Post-Roe
   • 1985: § 940.15 – felony only for post-viability abortions; includes “life or health of the woman” exception.
   • 1991–2013: Layered informed-consent, parental-involvement, ultrasound, admitting-privilege, and medication-protocol statutes.
   • 1997: § 940.16 – “partial-birth” abortion ban.
   • 2015: § 253.107 – 20-week “pain-capable” ban.
   • Funding restrictions (since 1977) that allow state money for abortions in rape, incest, life-or-health circumstances.
2. “Absurdity/Surplusage” Engine
   The majority says enforcing § 940.04 would render every narrower criminal prohibition and every regulatory statute pointless, because abortion would already be almost completely illegal. To avoid that “absurd redundancy,” the court treats the modern statutes as a de facto replacement.
3. Legislative-Intent Inference
   Relying on the cumulative breadth of modern regulation, the majority infers that lawmakers “must have intended” to withdraw the 1849 ban—even though the legislature amended § 940.04 in 2001 and 2011 and referenced it in 2015. It downplays those later actions as non-substantive “clean-up” or Truth-in-Sentencing tweaks.

3.3 Impact

• Immediate Practical Effect – Abortions up to 20 weeks (and post-20-week procedures meeting statutory exceptions) can resume in Wisconsin; physicians remain bound by the extensive informed-consent, parental-notice, ultrasound, admitting-privileges, and funding-restriction provisions.
• Prosecutorial Reach – District Attorneys can no longer invoke § 940.04; charging ability is limited to §§ 940.15, 940.16, and 253.107.
• Precedential Ripple – The decision provides a litigation roadmap for challengers in other states with old criminal bans but modern regulatory schemes (e.g., Michigan pre-Proposal 3, West Virginia, Arizona).
• Separation-of-Powers Controversy – The dissents warn that the majority’s relaxed implied-repeal test threatens legislative supremacy. Legislators across policy domains may fear that layering new statutory details could trigger judicial erasure of older, broader laws.

4. Complex Concepts Simplified

• Implied Repeal – When a newer statute nullifies an older one by operation of law—even though the legislature never said “repeal.” Courts presume against implied repeal; they will only find it when statutes are irreconcilably contradictory or when the new statute unmistakably covers the entire matter and is obviously meant to substitute the old.
• Viability – The stage at which a fetus can survive outside the uterus, with or without support. Wisconsin defines this via a physician’s “reasonable medical judgment.”
• Partial-Birth Abortion – Non-medical term describing intact dilation & extraction; federally and in Wisconsin (§ 940.16) prohibited except to save the mother’s life.
• Dobbs After-Shock – U.S. Supreme Court said Constitution confers no abortion right; returned policy to states. Dormant pre-Roe bans re-surfaced, triggering legal challenges like Kaul.
• John Doe Proceeding – Wisconsin’s secret investigatory process in which a judge determines whether a crime probably occurred and, if so, who committed it. Legislature in 2015 referenced § 940.04 as a “crime” for such purposes—an important fact in the dissents’ analysis.

5. Conclusion

Josh Kaul v. Urmanski dramatically rewrites Wisconsin’s post-Dobbs abortion landscape. By holding that a century-and-a-half-old criminal ban was silently nullified by scattered modern statutes, the court expands the doctrine of implied repeal beyond its traditional moorings. Supporters hail the ruling for restoring access to abortion services; critics decry it as judicial policymaking that disregards the legislature’s unmistakable retention—even recent amendment—of § 940.04. Future litigation will test how broadly courts apply this rejuvenated “comprehensive-scheme” theory, and whether legislatures respond by clarifying—or constitutionally entrenching—their intent.

Regardless of one’s policy stance on abortion, the decision is a watershed precedent on statutory interpretation, legislative-judicial boundaries, and the enduring complexities of state governance in the post-Dobbs era.