Court uses rarely used doctrine to achieve preferred policy outcome
Delafield, Wis. – The Institute for Reforming Government (IRG) released the following statement following the Wisconsin Supreme Court’s ruling in Josh Kaul v. Joel Urmanski. The majority’s decision utilized implied repeal to strike down the 1849 ban on abortion, arguing that subsequent abortion legislation effectively repealed the original statute.
In concurrence, newly elected Chief Justice Karofsky dropped all pretence of judicial objectivity, authoring a concurring opinion that doesn’t even bother with the law. Instead, she signaled a willingness to use her role as the Court’s newly minted Chief to chart an emboldened path for the liberal majority she now leads by, in her own words, “paus[ing] to reflect on the import of our decisions in the arc of history.”
All three conservative justices individually authored powerful dissents, including Justice Bradley, who opined, “In the face of impasse between the political branches, the majority removes the issue from the democratic process and chooses the law it prefers over the one it disdains.”
THE QUOTE:
“The progressive majority on the Wisconsin Supreme Court delivered on the campaign promises they made during their respective campaigns – overturning an abortion restriction they argued was inconsistent with their ‘values’,” said Jake Curtis, Director of IRG Court Watch. “Despite the majority claiming the application of implied repeal should remain ‘rare,’ it repeals the abortion ban, ignoring subsequent legislative acts that clearly take into account the statute. The new Karofsky Court has signaled they will go down a path of raw judicial power to achieve the results they desire.”
WHY IT MATTERS:
The Court’s majority opinion represents a significant deviation from the historical application of implied repeal review. The doctrine of implied repeal is a concept in statutory interpretation where courts can hold if a legislative body passes a new law (or laws) that run contrary to a previously passed law—without expressly repealing the prior law—passage of the most recent law can impliedly repeal the former. However, courts generally disfavor resolving cases via implied repeal, as courts give a strong presumption that the legislature is aware of its own laws and will not pass laws contrary to existing law without express repeal.
The majority’s willingness to embrace a rarely used legal principle to advance a preferred policy outcome represents a dangerous precedent for other critical cases the court is likely to hear next term.
WHAT’S NEXT:
The court’s decision effectively invalidates the 1849 total ban on abortion, but leaves in place the 20 week ban on abortion passed in 2015. The same day it issued its decision in Kaul v. Urmanski, it dismissed a broader challenge to the abortion law in a case brought by Planned Parenthood that it previously granted review on last year. (Planned Parenthood of Wisconsin v. Urmanski) Any future challenges to the abortion law from the courts would have to restart in circuit court or be brought as a new original action.
