(Brookfield, WI) – Today, the Wisconsin Supreme Court concluded in Kaul v. Urmanski that Wisconsin Statute 940.04 does not ban abortions in Wisconsin; rather that the laws of our state surrounding abortion enacted since the 1973 Roe v. Wade U.S. Supreme Court decision are what govern abortion.
It is the opinion of the Court “that comprehensive legislation” regulating abortion subsequent to Roe v. Wade and Planned Parenthood v. Casey and conforming to these rulings, including informed consent laws, a 24-hour waiting period, ultrasound requirements, telehealth restrictions, “impliedly repealed” Wisconsin’s 1849 near-total abortion ban, s.940.04.
The Court wrote:
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 Accordingly, we hold that the legislature impliedly repealed § 940.04(1) as to abortion, and that § 940.04(1) therefore does not ban abortion in the State of Wisconsin.
Pro-Life Wisconsin Legislative Director Matt Sande offered his comments:
Pro-Life Wisconsin wholly opposes this egregious ruling overturning Wisconsin’s abortion ban from the moment of conception. The Wisconsin Supreme Court has consistently stated that acts of the legislature are presumed to be constitutional and are to be given due deference.
In Hui v. Castenada (2010), the Court found disfavor with repeal by implication stating, “As we have emphasized, repeals by implication are not favored and will not be presumed unless the intention of the legislature to repeal is clear and manifest.” It was certainly never the intent of the legislative authors of modern abortion regulations post-Roe and Casey to repeal s.940.04 or they would have expressly done so. They did not. They were simply attempting to mitigate the ravages of abortion under the onerous dictates of the Roe/Casey legal regime.
In State of Wisconsin v. Glenndale Black (1994), the Wisconsin Supreme Court was unpersuaded that the legislature intended to repeal s.940.04 when it enacted the Roe-conforming s.940.15. It said, “Implied repeal of statutes by later enactments is not favored in statutory construction.”
And in State v. Zawistowski (1980), the Court specifically held, “All statutes passed and retained by the legislature should be held valid unless the earlier statute is completely repugnant to the later enactment.” Section 940.04 of the Wisconsin Statutes is clearly not inconsistent with, offensive or repugnant to modern-day abortion laws.
In sum, respect for Wisconsin Supreme Court case law history, legislative intent, logic, and justice are not the aim of this radicalized Court; unfettered abortion is.
Pro-Life Wisconsin will continue the fight to outlaw abortion without exception, pass a personhood amendment enshrining the right to life in the Wisconsin Constitution, and enact pro-life, pro-family legislation that helps build a culture of life in our great state. We will also continue to change hearts and minds through educational outreach, an active social media presence, billboard campaigns, support of pregnancy resource centers, and sidewalk counseling in front of abortion centers.
