In the aftermath of the Supreme Court’s 1973 decision in Roe v. Wade, a federal district court in Wisconsin ruled that the state’s longstanding ban on non-therapeutic abortions—codified as Wis. Stat. § 940.04(1)—was unenforceable. In the decades after Roe, the Wisconsin legislature enacted a series of laws on abortion that were designed to operate within the constricted space that the Supreme Court’s decisions allowed it. At the same time, it never repealed section 940.04(1), and in fact it amended it as recently as 2011 and cross-referenced it in a statute that it enacted in 2015.
By overruling Roe in its 2022 ruling in Dobbs v. Jackson Women’s Health Organization, the Supreme Court rendered section 940.04(1) enforceable again. Or so one would have thought.
But by a vote of 4 to 3, the Wisconsin supreme court ruled today (in Kaul v. Urmanski) that the laws that Wisconsin enacted post-Roe somehow impliedly repealed section 940.04(1).
Justice Brian Hagedorn’s dissent soundly condemns the majority opinion as “pure policymaking, driven by antagonism toward a law the majority does not like.” In page after page, he eviscerates the majority’s gross misapplication of the “rarely used, highly disfavored doctrine of implied repeal.” He concludes:
Putting this [statutory and legal history] together, the petitioners must demonstrate that a singular act covering the entire field of abortion policy was intended by the legislature to repeal older, narrower laws. And the showing must be overwhelmingly clear, manifest, and obvious. At every point, the majority falls on its face. There is no singular act, the scattered provisions do not cover the entire field of abortion policy, and later statutory enactments prove without question that the legislature did not intend to repeal the law.
Instead, when we look at what the legislature did, an obvious story emerges. The legislature enacted criminal and regulatory laws governing abortion while WIS. STAT. § 940.04 was unenforceable under Roe, but they did not repeal it. This story is borne out in the language of later statutes mirroring Supreme Court standards, the legislature’s ongoing references to the applicability of § 940.04 as a criminal abortion statute, and the legislature’s two amendments to the statute even when it was unenforceable under Roe. As this court has held, when the legislature amends the law in question, a “finding of a repeal by implication [is] simply impossible.”
In light of the overwhelming evidence that the legislature did not repeal WIS. STAT. § 940.04, how does the majority reach the opposite conclusion? It turns a blind eye to all of it. The majority does not point to a singular act. It does not demonstrate that the smattering of postRoe laws covered the entire field. It does not deal fairly with the text or nature of the later-enacted statutes. It does not wrestle with the relevant statutory evidence—including the references to and amendments of § 940.04 after it was purportedly repealed. The majority does not even countenance Roe’s obvious effect on Wisconsin’s various post-1973 abortion laws. An honest statutory analysis guided by the law would examine and consider all of this. So given the dramatic holding here—one that functionally erases a law from the books—why didn’t the majority consider the statutory evidence and apply the proper legal framework? The reasons are obvious, and they have nothing to do with the law.
In her own dissent, Justice Annette Kingsland Ziegler likewise condemns the majority opinion as a “jaw-dropping exercise of judicial will” that “fail[s] to hew to any semblance of traditional judicial decision-making.” She also explains that the “majority is compromised when it comes to the issue of abortion”: Specifically, when one member of the majority, Justice Janet Protasiewicz, campaigned for her seat in 2023, she “expressed her support for abortion rights repeatedly,” “called the law at the heart of this case ‘draconian’ and decried the idea that the law might stay in place.” Further, “the other justices in the majority also made statements indicating how they vote in this case or endorsed then-Judge Protasiewicz.”
In a third dissent, Justice Rebecca Grassl Bradley blasts a concurring opinion by Chief Justice Jill Karofsky that “reads as a parody of progressive politics”: 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.”