Case: Kaul v. Urmanski (formerly Kapenga)

In this case, plaintiffs sought a declaration that a 1849 Wisconsin criminal law broadly banning abortions was unenforceable. 

Wisconsin Statute § 940.04, enacted in 1849 before women could vote, states that it is a criminal felony to destroy the life of an unborn child at any point after conception unless necessary to save the pregnant woman’s life, but not for other health reasons. After Roe, the Wisconsin Legislature enacted another set of laws that criminalized abortion past the fetus’ viability and contained broader exceptions for the pregnant person’s health. According to plaintiffs, the pre-Roe and post-Roe laws conflicted and could both be enforced. 

On June 28, 2022, Wisconsin Attorney General Josh Kaul, the Wisconsin Department of Safety and Professional Services, the Wisconsin Medical Examining Board, and its chairperson in his official capacity sought a declaratory judgment that § 940.04 is unenforceable. The plaintiffs sued three state officers—the President of the Wisconsin Senate and Co-Chair of the Joint Committee on Legislative Organization, the Majority Leader of the Wisconsin Senate, and the Speaker of the Wisconsin Assembly and Co-Chair of the Joint Committee on Legislative Organization— in the Dane County Circuit Court. Under Count I, plaintiffs alleged a more recent statutory regime superseded the older statute, which operated as a broader ban on abortions. Under Count II, plaintiffs alleged that § 940.04 was unenforceable because of its historical disuse and in light of reliance on Roe and subsequent jurisprudence. Plaintiffs alleged that while Roe was in force, advocacy was unnecessary to repeal § 940.04 because enforcement would violate federal constitutional law.

Defendants filed a motion to dismiss on August 28, 2022. Characterizing themselves as “legislative officials with no enforcement power," defendants found defects with the complaint they characterized as an “impermissible request for an advisory opinion about abstract legal questions” due to plaintiff’s lack of a cognizable legal interest as state officers rather than potential criminal defendants facing § 940.04 charges.

Plaintiffs filed an amended complaint on September 22, 2022, naming three additional defendants—District Attorneys for Milwaukee, Dane, and Sheboygan Counties, the only counties where abortions were performed before Roe was overturned. The three original defendants were dismissed from the case with prejudice on September 28, 2022.

Three physicians proposed intervening in this case as plaintiffs on November 3, 2022; the physicians practiced emergency medicine, obstetrics and gynecology, and maternal fetal medicine and, in the course of their work, sometimes performed abortions. Their motion was granted on November 18, 2022. Defendants filed motions to dismiss both the amended complaint and the intervenors’ complaint.

The court heard oral arguments on May 4, 2023 and, on July 7, it denied defendants' motion to dismiss. 2023 WL 4544392. In its order, the court held that § 940.04 criminalized feticide, not abortion, consistent with the Wisconsin Supreme Court’s decision in State v. Black, 188 Wis. 2d 639 (1994). It also held that plaintiffs had stated a claim upon which relief could be granted – specifically, that defendants threatened to prosecute physicians under § 940.04 for performing consensual medical abortions. The court also held the intervenor-plaintiffs had standing to sue. 

The next month, on August 7, the state plaintiffs and the intervenor-doctors sought a declaration that § 940.04 does not apply to consensual abortions, as well as an injunction in support of the same. Defendants, on the other hand, moved for reconsideration on September 15. 

On December 5, 2023, Judge Diane Schlipper granted summary judgment for the physicians. 2023 WL 11727006. At the same time, she denied the motion for reconsideration, denied the physicians’ motion for an injunction, and denied the state plaintiffs’ motion for judgment on the pleadings as moot. In granting judgment, the court stood by its previous interpretation of § 940.04, and it held that one of the physicians presented a justiciable claim, as she feared criminal repercussions based on prosecutors’ public statements that the statute could be used to prosecute abortion providers. The court denied injunctive relief because the defendants had stated they would abide by the Court’s order, an injunction would only apply to the defendants, not all Wisconsin district attorneys, and because declaratory judgment would be functionally equivalent to an injunction.

On December 20, a defendant appealed to the Wisconsin Court of Appeals and, on February 20, 2024, the Wisconsin Attorney General filed a petition to bypass the Court of Appeals and go straight to the Wisconsin Supreme Court. On July 2, 2024, the Wisconsin Supreme Court accepted the petition to bypass. In its order, the Court noted that it would not hear arguments on whether the state constitution contained a right to obtain a consensual medication abortion. It also granted the intervenor-physicians’ motion to intervene on September 24. 

The Wisconsin Supreme Court issued its opinion on July 2, 2025, holding that § 940.04 was impliedly repealed and did not prohibit abortion. 22 N.W.3d 740. Justice Dallet, writing for the majority, declined to resolve whether § 940.04 applied to abortion or only to feticide, finding the issue unnecessary to decide. Instead, Justice Dallet held that the Wisconsin state legislature had impliedly repealed § 940.04 as to abortion through 50 years of comprehensive legislation thoroughly covering the entire subject of abortion, including where, when, and how healthcare providers could lawfully perform abortions. Permitting a near-total ban under § 940.04 to coexist with the subsequent regulatory scheme would render that scheme meaningless — most strikingly, it would mean the government had authorized subsidizing a crime by funding abortions in cases of rape, incest, or serious physical health damage. 

The case is now closed.