JOSH KAUL, et al., Plaintiffs-Respondents, v. JOEL URMANSKI, et al., Defendant-Appellant.
No. 2023AP2362
Supreme Court of Wisconsin
Decided July 2, 2025
2025 WI 32
APPEAL from a
DALLET, J., delivered the majority opinion of the Court, in which KAROFSKY, C.J., ANN WALSH BRADLEY and PROTASIEWICZ, JJ., joined. KAROFSKY, C.J., filed a concurring opinion. ZIEGLER, J., filed a dissenting opinion. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion. HAGEDORN, J., filed a dissenting opinion, in which REBECCA GRASSL BRADLEY, J., joined.
¶1 REBECCA FRANK DALLET, J. In Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 231 (2022), the United States Supreme Court overruled
¶2 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 Accordingly, we hold that the legislature impliedly repealed
I
¶3 Shortly after Dobbs was decided, Attorney General Josh Kaul, along with the Department of Safety and Professional Services, the Medical Examining Board, and its chairperson brought this case. They, along with three physicians who were subsequently permitted to intervene as plaintiffs, seek a declaratory judgment that
¶4 Plaintiffs named as defendants the district attorneys of Sheboygan, Milwaukee, and Dane Counties: Joel Urmanski, John Chisholm,2 and Ismael Ozanne. District Attorney Urmanski moved to dismiss.3 He contended that Plaintiffs failed to state claims upon which relief could be granted because
¶5 The circuit court denied Urmanski’s motion, concluding that the Plaintiffs stated a claim upon which relief could be granted because
II
¶6 Urmanski appeals the circuit court’s denial of his motion to dismiss and subsequent order granting summary judgment. We review these decisions de novo. Doe 56 v. Mayo Clinic Health Sys.—Eau Claire Clinic, Inc., 2016 WI 48, ¶14, 369 Wis. 2d 351, 880 N.W.2d 681.
III
¶7 The central question before us is whether
¶8 Initially,
¶9 Plaintiffs argue that interpreting and enforcing
¶10 We focus our analysis on Plaintiffs’ second argument because it is dispositive. We conclude that, under the unique circumstances presented here, the legislature impliedly repealed
A
¶11 A statute may be repealed either expressly, by enacting a subsequent statute that repeals the earlier one, or by implication. State v. Dairyland Power Coop., 52 Wis. 2d 45, 51, 187 N.W.2d 878 (1971). Although implied repeal is “not a favored concept in the law,” id., it is nonetheless deeply rooted in Wisconsin law and is indeed older than the state itself. See, e.g., Richardson v. Sheldon, 1 Pin. 624, 630 (Wis. Terr. 1846); Attorney General ex rel. Taylor v. Brown, 1 Wis. 513, 525–26 (1853); see also Dairyland, 52 Wis. 2d at 51; State v. Vilamil, 2017 WI 74, ¶37, 377 Wis. 2d 1, 898 N.W.2d 482.
¶12 Our cases have identified two narrow circumstances in which the doctrine applies. The first is when a subsequent law “contains provisions so contrary to or irreconcilable with those of the earlier law that only one of the two statutes can stand in force . . . .” Dairyland, 52 Wis. 2d at 51 (quoting another source). Although the parties make arguments based on this first type of implied repeal, we focus instead on the second type, which occurs when the legislature adopts comprehensive legislation through one or more acts6 that so thoroughly covers the entire subject of the earlier statute that it was clearly meant as a substitute for that earlier law. See Wisth v. Mitchell, 52 Wis. 2d 584, 589, 190 N.W.2d 879 (1971); see also Gilkey v. Cook, 60 Wis. 133, 139, 18 N.W. 639 (1884); 1A SUTHERLAND STATUTORY CONSTRUCTION § 23:9 (8th ed. 2025). Such legislation is comprehensive if it “revise[s] the entire subject to which it relates” by establishing “elaborate inclusions and exclusions of the persons, things and relationships ordinarily associated with the subject.” Wisth, 52 Wis. 2d at 589 (quoting another source).
B
¶13 Plaintiffs contend that the legislature enacted comprehensive legislation over the last 50 years when it adopted numerous statutes thoroughly covering the entire subject of abortion including those detailing where, when, and how health-care providers may lawfully perform abortions. According to Plaintiffs, these statutes so thoroughly cover the subject of abortion that they were clearly meant as a substitute for the near-total ban on abortion in
1
¶15 We start with
(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:
(a) Intentionally destroys the life of an unborn quick child; or
(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother’s death was committed.
(5) This section does not apply to a therapeutic abortion which:
(a) Is performed by a physician; and
(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
(c) Unless an emergency prevents, is performed in a licensed maternity hospital.
(6) In this section “unborn child” means a human being from the time of conception until it is born alive.
¶16 This statute’s earliest predecessor was enacted in 1849. See
¶17 But that was over 50 years ago. In the decades since, the legislature has enacted a myriad of statutes governing abortion. Most of these statutes8 fall into three broad categories. First, the legislature adopted criminal laws prohibiting abortions in narrower circumstances than
¶18 The first of the criminal laws narrower than
¶19 Section 940.15 also allows for post-viability abortions that are “necessary to preserve the life or health of the woman, as determined by reasonable medical judgment of the woman’s attending physician.”
¶20 Since 1985, the legislature has enacted two other criminal laws that are narrower than
¶21 Aside from these criminal laws, the legislature has adopted many additional statutes regulating where, when, and how health-care providers may lawfully perform abortions. The earliest versions of these statutes required abortion providers to give information to patients regarding fetal age, pregnancy and birth-control resources, adoption, and the risks of an abortion. See 1985 Wis. Act 56, § 32; see also
¶22 The final category of laws specify the circumstances under which state, county, or municipal funds may go to providing abortion services or entities that provide such services. The first such law,
2
¶23 Collectively, these statutes constitute “comprehensive legislation” encompassing the “entire subject” of abortion and establishing “elaborate inclusions and exclusions of the persons, things and relationships ordinarily associated with the subject.” Wisth, 52 Wis. 2d at 589 (quoting another source). Indeed, these statutes specify, often in extraordinary detail, the answer to nearly every conceivable question about abortion. Who may perform abortions? Only doctors. See
¶24 Critically, this comprehensive legislation would serve no purpose if
¶25 There would also be little or no need for the many non-criminal statutes requiring, for example, that physicians who perform abortions have admitting privileges at nearby hospitals, or mandating that they obtain voluntary and informed consent (and parental consent or court waiver for minors) before providing abortions. See, e.g.,
¶27 This conclusion is consistent with decisions by several other courts holding that comprehensive legislation governing abortion impliedly repealed earlier abortion bans. For example, in McCorvey v. Hill, 385 F.3d 846 (5th Cir. 2004), the Fifth Circuit concluded that Texas’s criminal abortion ban was impliedly repealed by the enactment of “a comprehensive set of civil regulations” governing the availability of abortion, practices and procedures of abortion clinics, and funding for abortions. See id. at 849. Those regulations, the court explained, were “intended to form a comprehensive scheme—not an addendum to the criminal statutes,” and thus impliedly repealed Texas’s earlier criminal ban on abortion. See id. A federal district court in Arkansas reached a similar conclusion, explaining that a “regulatory scheme for the performance of legal abortions” was inconsistent with, and impliedly repealed, an earlier criminal ban. Smith v. Bentley, 493 F. Supp. 916, 924 (E.D. Ark. 1980); see also Weeks v. Connick, 733 F. Supp. 1036, 1038–39 (E.D. La. 1990) (reaching a similar conclusion with respect to two Louisiana laws). And more recently, after Dobbs, the Supreme Court of Guam concluded that laws banning “partial-birth abortion,” regulating voluntary and informed consent, and requiring reporting of abortions impliedly repealed an earlier categorical ban on abortion in the territory. See In re Leon Guerrero, 2023 Guam 11, ¶52; see also Women’s Health Ctr. of W. Va. v. Miller, No. 22-C-556, 2022 WL 3443446, at *6–9 (W. Va. Cir. Ct. July 20, 2022) (preliminarily enjoining West Virginia’s criminal abortion ban after Dobbs because it was impliedly repealed by a later comprehensive statutory scheme).
¶28 Urmanski nevertheless argues that these subsequent statutes are not at odds with a near-total ban on abortion in
¶29 We also reject Urmanski’s claims that statutory and legislative history demonstrate that the legislature did not impliedly repeal
¶30 The problem with Urmanski’s argument is that there are far more compelling explanations for these changes. The 2001 amendment Urmanski cites was part of Wisconsin’s adoption of Truth-in-Sentencing, which was a wholesale revision of penalty provisions across Wisconsin’s criminal statutes. See 2001 Wis. Act 109, §§ 586-88. We find it unlikely that the legislature buried an unwritten intention that
¶31 Urmanski’s argument based on the legislative history of
¶32 We further reject Urmanski’s reliance on language in some, but not all, of Chapter 253’s regulations on abortion that those provisions may not “be construed as creating or recognizing a right to abortion or as making lawful an abortion that is otherwise unlawful.” See, e.g.,
¶33 In the end, the comprehensive nature of the last 50 years of legislation about abortion and the incompatibility of those laws with a near-total ban on abortion in
IV
¶34 In conclusion, this case is about giving effect to 50 years’ worth of laws passed by the legislature about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions. The legislature, as the peoples’ representatives, remains free to change the laws with respect to abortion in the future. But the only way to give effect to what the legislature has actually done over the last 50 years is to conclude that it impliedly repealed the 19th century near-total ban on abortion, and that
By the Court.—The judgment and order of the circuit court is affirmed.
JILL J. KAROFSKY, C.J., concurring.
¶35 “To allow a State to exert control over one of ‘the most intimate and personal choices’ a woman may make is not only to affect the course of her life, monumental as those effects might be. . . . It is to alter her ‘views of [herself]’ and her understanding of her ‘place[] in society’ as someone with the recognized dignity and authority to make these choices.” Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 409 (2022) (Breyer, Sotomayor, Kagan, JJ., dissenting) (alteration in original) (quoting Planned Parenthood of Se. Penn. v. Casey, 505 U.S. 833, 851 (1992)).
¶36
¶37 I agree with the majority’s decision and its analysis. In deciding that the legislature impliedly repealed
¶38 I begin with an examination of the history of abortion in the United States. In doing so, I highlight the impact of the U.S. Supreme Court landmark decisions of Roe v. Wade 410 U.S. 113 (1973), and Dobbs v. Jackson Women’s Health on pregnant people. I conclude by elevating the accounts of four women to illustrate the real-world consequences of severe abortion restrictions. I hold these tragedies up to the light in the hope that Wisconsin’s legacy may remain on the side of history that values the health and well-being of all people.
I. HISTORY OF ABORTION IN THE UNITED STATES
¶39 During our country’s founding, abortions were widely available. In colonial America, prior to quickening (that vague point in gestation at which a woman or physician recognized fetal movement) abortions were commonplace and unquestioned.2 Abortion practices at that time were referred to as “removing a blockage” or “restoring the menses” because the purpose of the procedure was to reestablish the body’s natural state of monthly menstruation. The practice also disrupted the growth of a fetus, but the primary focus was to maintain the health of the mother.3
¶40 The general sentiment of the time was that women who were not enslaved had complete autonomy over the decision to obtain an
abortion.4 As such, health care providers offered services and products that facilitated abortions, advertising pills “particularly suited to married ladies” that induced periods, as well as services for women “who wish to be treated for obstruction of the monthly period.”5 Abortifacients, substances known to end pregnancies, were openly sold in stores and door-to-door. They, like feminine hygiene products, were treated as entirely unrelated to ideological or religious beliefs.6 Importantly, a range of professionals, including midwives, homeopaths, pharmacists, and physicians, offered these services and products.
¶41 This trend continued into the Nineteenth Century: abortion-related treatment was commonplace, usually under the purview of women medical providers, and recognized as being far safer than childbirth. Legal restrictions, to the extent they
¶42 Wisconsin was no exception. In 1849, one year after statehood, Wisconsin adopted the common law post-quickening prohibition on abortion.8 Otherwise, abortion was permitted for any
pregnant person who sought one. Triggered largely by physicians’ desire to remove competing practitioners from the healthcare field, substantial changes to abortion access would soon arrive.9
¶43 Beginning in the 1840’s and gaining steam in the 1850’s, the U.S. was swept up in a physician-led crusade against abortion access.10 The fight was amplified by professional animus toward female medical practitioners like midwives, many of whom were Black and Indigenous,11 and the growing women’s rights movement. At the helm of this crusade was Horatio Storer, a prominent obstetrician and one of the American Medical Association’s (AMA) earliest members.12 Storer believed a woman’s biological role was to be a wife and mother (not a health practitioner). As a result, he argued that abortion, a service often provided by female health practitioners, amounted to murder. He further blamed abortions for the population decline of “native-born,” White Americans.13
¶44 In his zeal, Storer saw no significance to the “quickening” stage of pregnancy, and made this clear in his efforts to completely curb all access to abortion. Moreover, Storer’s rhetoric about abortions omitted accurate information about women’s health and focused mainly on the morality of abortion. In 1857 Storer publicly called upon the medical profession to oppose abortion and to consider legislation that would limit the practice of abortion exclusively to fellow physicians. He labored to convince physician-colleagues in every state to work toward banning abortions.14
¶45 Storer’s efforts were successful. In Wisconsin, for example, a state senate clerk named Dr. Henry Brisbane wrote to Storer regarding his desire “to get a law passed by our Legislature” to prevent both birth control and abortion procedures.15 Due at least in part to Brisbane’s efforts, the all-male, 1858 Wisconsin legislature removed the word “quick” from the 1849 statute, thus prohibiting abortion at every stage of gestation.16
¶46 By the end of the 1800s, every single state had a statute criminalizing abortion. What began as AMA effort’s to wrest control from female providers of abortifacients and care,17 became a wide-sweeping
¶47 Yet abortions remained basic and necessary medical care for many women. These severe restrictions ushered in an era when abortion care, though still common, became secretive and deadly.19 And women of color and women living in poverty suffered a disproportionate number of those deaths.20
¶48 In Wisconsin, despite some penalty changes, and the 1955 consolidation of the abortion-related statutes into
II. ROE AND DOBBS
¶49 In 1973, the U.S. Supreme Court’s decision in Roe v. Wade, 410 U.S. 113 (1973), struck down
¶50 Then in 2022, the U.S. Supreme Court overturned Roe in Dobbs v. Jackson Women’s Health, 597 U.S. 215 (2022), declaring that a constitutional right to abortion no longer existed, sending the issue of abortion back to state legislatures. The impact was cataclysmic, as many states forbade abortion access. Among the sobering post-Dobbs statistics, I point to just one: during the two-year period after that decision, in the 14 states with abortion restrictions similar to
¶51 Here in Wisconsin, the uncertainty as to whether
¶52 Although some providers in Wisconsin have resumed abortion-related care, uncertainty regarding the legal landscape of abortion care remains. Such uncertainty has led to adverse outcomes because some women delay or avoid seeking reproductive care.24 This is especially true for Wisconsin’s racially marginalized populations. These populations already face barriers to medical care, resulting in appallingly high maternal mortality rates. For example, Black women in this state are one-and-a-half times more likely to face serious pregnancy complications compared to other groups,25 and Native American women follow close behind, with the second highest rate of maternal mortality in Wisconsin.26 The volatile legal status of abortion-related care has only exacerbated these entirely preventable inequalities.27
¶53 Extreme abortion restrictions impact medical providers as well, forcing them into impossible ethical dilemmas. Because many abortion restrictions are written with vague language, it is often clinically unclear when a provider can prioritize the life and safety of the pregnant person. How is a medical professional able to provide necessary care when a pregnancy complication might require intervention that could be a crime? She cannot: “Pregnant patients have ‘become radioactive to emergency departments’ in states with extreme abortion restrictions.”28
III. WE HONOR THEIR STORIES AND THEIR LIVES
¶54 This forced paralysis has had real, deadly consequences. Although by no means representative of every tragedy, below are the stories of four women who lost their lives because they lived in states that severely restrict abortion care in a manner
¶55 In Georgia, state law prohibits abortion beyond six weeks of pregnancy, with unclear exceptions only for the life and health of the mother or fetal anomalies. At least two women have died there because the law is imprecise and leaves health care workers uncertain regarding which health conditions and symptoms allow abortion care. In August of 2022, Amber Thurman, a 28-year-old Black mother, was pregnant. Amber visited a hospital because she was experiencing a treatable complication that is sometimes a side effect of an abortion pill. She was admitted to the hospital, but the medical staff declined to treat her for 20 hours out of concern that intervention would violate the law.29 Without treatment, Amber developed sepsis and died.
¶56 Candi Miller, a Black woman who also lived in Georgia, suffered from multiple health conditions that made pregnancy a risk. When she became pregnant, Candi avoided health care because of Georgia’s strict abortion prohibition and instead ordered an abortion pill online. She suffered a similar complication to Amber, and, hesitant to seek medical care, she endured severe pain in her bed at home, eventually dying from a lethal combination of painkillers.
¶57 In Texas, an abortion law passed in May 2021 that requires physicians to confirm the absence of a fetal heartbeat before abortion care is permitted. The exception to this prohibition, a “medical emergency,” is undefined. Josseli Barnica, an immigrant from Honduras, was pregnant and living in Texas at that time. At 17 weeks of pregnancy, Josseli began to miscarry. Despite being hospitalized, confirmation that she was in the process of miscarrying, and the fact that the fetus was pressed against her dilated cervix, health care professionals declined to hasten the delivery because the fetus still had a heartbeat. She was told, “It would be a crime to give her an abortion.”30 Josseli endured 40 hours of labor before delivering the fetus. During her labor and delivery she received only pain medication and emotional support. Josseli died of sepsis three days later. An expert review of her hospital records showed that Josseli would have likely survived with a quicker intervention. Her story is not unique: rates of sepsis in Texas among miscarrying women have gone up by more than 50% since that state passed its near-total abortion ban.31 And maternal mortality, otherwise decreasing nationally, has gone up by 33% in Texas since the ban.32
¶58 These women should all still be alive. Their deaths were not only preventable, they were foretold by the stories of other women from a century ago. One of those stories involved my own great-grandmother, Julia Cowan, who met the same fate in 1929. Living in Boston, Julia, a White woman, became pregnant with what would have been her fourth child.
¶59 I join the majority because it aptly analyzes the law and explains why
ANNETTE KINGSLAND ZIEGLER, J., dissenting.
¶60 The majority opinion is a jaw-dropping exercise of judicial will, placing personal preference over the constitutional roles of the three branches of our state government and upending a duly enacted law. In this dangerous departure from our constitutional design, four members of the court make up and apply their own version of implied repeal, failing to hew to any semblance of traditional judicial decision-making or jurisprudence. Under the majority’s more-than-novel approach, four members of the court scrub from the Wisconsin Statutes one abortion law,
¶61 Purporting to apply the doctrine of implied repeal, the majority picks and chooses which abortion statutes remain in force. The majority admits that there is no irreconcilable conflict between
¶62 Abortion invokes strong feelings and opinions. Depending on the lens with which one personally views abortion, different individualized positions may be reached. For example, personal philosophy or experience may yield one answer; insight derived from medical practice may produce another; and biblical interpretation may bring forth yet another. Regardless of what might factor into an individual’s opinion, that point of view can be deeply personal and complicated. Unlike the profoundly personal way in which we might determine our respective positions on abortion, that process is quite different from how a court is required to interpret the law. It is the court’s duty to adhere to the law whether we “like” the answer or not.9 A judge’s personal preferences are not legal analysis and should not supplant it. Although people may strongly disagree about abortion, an objective review of the law of implied repeal must lead to the conclusion that the statute at issue has not been repealed by the legislature, expressly or impliedly.
¶63 For many, abortion is one of the most important issues of our time. It is “a profound moral issue on which Americans hold sharply conflicting views.”10 Both interests involved—the interests of a pregnant woman who seeks an abortion and the interests in protecting fetal life— “are extraordinarily weighty.”11 However, since the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022) overruled its prior decisions in Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), among others, the Wisconsin Legislature
¶64 As Justice Rebecca Grassl Bradley observes in her dissent, instead of following the law wherever it leads, the majority seizes for itself the role of the legislature: “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.”17 Put bluntly, our court has no business usurping the role of the legislature, inventing legal theories on the fly in order to make four justices’ personal preference the law. When the Court in Dobbs overruled Roe and Casey, it returned the question of abortion “to the people and their elected representatives.”18 The Court did not send the question of abortion policy to state courts to take over where it left off. Abortion policy is for the legislature to decide.
¶65 Courts are not constitutionally designed to react to public opinion,19 but quite recently our court has been seen and used as an expedient vehicle for achieving results.20 That is a grave mistake for the institution and an assault on the constitution. The issue before us presents a clear example of why it is the legislature’s constitutional duty—not the court’s—to react to the pulse of the public and enact laws consistent with public opinion as public opinion changes over time. Unlike our court, the legislature has the authority and power to react to public opinion: It may enact and repeal statutes,21 craft a constitutional amendment,22 or perhaps even consider a public referendum. Unlike our court, the legislature can hear from, and take account of, varied points of view when developing legislation. The legislature can hold hearings to vet different policy proposals and consult experts. If the public does not like the legislative results, it has recourse through the electoral process, which, by constitutional design, happens far more frequently than that in the
¶66 Our constitution, which vests the legislature with the power to make the law, assumes that the judicial branch will act with restraint. The judicial branch is supposed to be the least dangerous branch of government.27 But when a statute is repealed by judicial fiat, as has been done here, the constitution’s design is undone. The supreme court of our state is not the proper vehicle for enacting the will of the people. Judges are not “merely legislators in black robes[,]”28 and the court’s role of interpreting the law ought not to be turned into “politics pursued by other means.”29 Particularly with politically and emotionally charged issues—like abortion—the court should be extremely mindful to ensure that it hews to its duty to exercise restraint. Instead of giving in to the temptation to provide a particular result, as my colleagues do here, the court should be exacting and apply sound legal analysis. Today’s decision may be popular, but the result comes at great cost to the constitution and the rule of law.
¶67 Our court is particularly ill-equipped to decide the issue of abortion. Our court should not, and particularly this majority should not, decide the issue because Justices on this court have—very recently—publicly made their views regarding abortion known.30 Some have promised the result
¶68 We should not be stepping in to legislate on the subject. To be clear, if we did not address the issue and provide an answer, the public would still have recourse through the legislature. As a practical matter, it is quite common for a court to not answer questions presented to it, no matter how much the answer may be desired. In fact, we deny more petitions for review (or petitions for bypass) than we grant. And even when we grant such petitions, we sometimes determine that an answer to the question presented will not be provided.31 Any number of legal technicalities could preclude a litigant from getting the relief requested. For example, a procedural issue may preclude the case from being heard. A case may not be heard because it is time barred, no matter how seemingly unfair or unsatisfying it may be to those requesting that the court decide the matter.32 Simply stated, there are a number of reasons why we might not decide a case, including if we lack a quorum.
* * *
¶69 The result the majority imposes on the whole State of Wisconsin will—no doubt—be applauded by many across the state who view
¶70 An important and divisive issue such as abortion deserves well-reasoned judicial decision-making, not legislating under the guise of a judicial opinion. While I am disappointed with my colleagues’ decision to legislate their personal policy preferences from the bench and cast aside the constitutionally prescribed role of the court, considering this court’s recent decisions,34 this sadly comes as no surprise.
¶71 For the foregoing reasons, I dissent.
REBECCA GRASSL BRADLEY, J., dissenting.
¶72 [I]f the policy of the Government upon vital questions affecting the whole
Abraham Lincoln’s First Inaugural Address, 1861.1
¶73 The majority erases a law it does not like, making four lawyers sitting on the state’s highest court more powerful than the People’s representatives in the legislature. Any remaining doubt over whether the majority’s decisions are motivated by the policy predilections of its members has been extinguished by its feeble attempt to justify a raw exercise of political power.2 The majority not only does violence to a single statute; it defies the People’s sovereignty.
¶74 Not content with effacing the law, Chief Justice Jill 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. Laden with emotion, steeped in myth, and light on the law, the concurrence reads as a parody of progressive politics rather than the opinion of a jurist.
¶75 Offering only policy considerations, the concurrence obscures what this case actually concerns. This case was never about what abortion policy should be. It was always about who decides. Chief Justice Karofsky makes an emotional appeal for amending Wisconsin’s abortion law. Her arguments belong in the legislature, which is equipped (and authorized) to debate the issue, sift through statistics and stories (the suspect along with the valid), and enact a policy reflecting the will of the People.
¶76 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. Chief Justice Karofsky’s concurrence unveils the nature of the majority’s decision in this case; it isn’t judicial. The majority seeks to reverse what it considers the “cataclysmic” impact of the United States Supreme Court’s recognition in Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022) that the United States Constitution says nothing about abortion and leaves the issue to be decided by the People.3 Concurrence, ¶50.
¶77 While political polls reveal the voting public prefers legal abortion, judges are not supposed to be responsive to polls—unlike the legislature and the governor. Judges are supposed to follow the law whether they like it or not, and leave the policy making to the political branches. Abandoning venerable judicial norms of neutrality, the members of the majority
embracing her rejection of the rule of law in favor of their own will. All four silenced pro-life advocates in a companion case challenging the constitutionality of Wisconsin’s abortion law. Planned Parenthood of Wisconsin v. Urmanski, No. 2024AP330-OA, unpublished order (Wis. July 2, 2024) (denying motion to intervene from Wisconsin Right to Life, Wisconsin Family Action, and Pro-Life Wisconsin).
¶78 Voters may be impatient with the political impasse between the governor (a Democrat) and the legislature (majority Republican)—on this issue and perhaps others. Electing justices who fancy themselves super legislators, however, comes at a steep price. The People of Wisconsin have surrendered self-governance to four liberal lawyers. No one, regardless of political leanings, should want any four lawyers to make all of the important decisions for we the People—absent debate, discussion, or compromise. The constitution doesn’t allow it. In America, the Law is King.6 The majority of this court has deposed the Law. There is no greater affront to democracy. There is no greater threat to our Republic. I dissent.
I
¶79 “The struggle over the stories we tell ourselves about abortion inevitably has become in part a struggle to control the history of abortion.” JOSEPH W. DELLAPENNA, DISPELLING THE MYTHS OF ABORTION HISTORY 12 (rev. ed. 2023).
¶80 The history of abortion has no relevance to the statutory interpretation question the parties present. The kind of revisionist history permeating the concurrence, however, bears a veneer of accuracy solely because it exists in a judicial opinion. When the legend becomes “fact,” the media, and sometimes legal commentators, print the legend, and the truth becomes forgotten.7 While the concurrence has nothing to do with the law, allowing it to stand without refutation would be an affront to the truth.
¶81 Citing discredited sources, Chief Justice Karofsky claims “abortions were widely available” in colonial America and women had “complete autonomy over the decision to obtain an abortion.” Concurrence, ¶¶39–40. Neither assertion is true. “English law regarding abortion was fully received in the colonies, and [] the purported ‘common law liberty’ to abort is a myth.”8 As the United States Supreme
¶82 Until Roe v. Wade, “there existed a near millennium of statements in the historical record that condemned abortion” with only two discredited sources—dating from 1285–1292—suggesting abortion was not a crime.9 In The Mirror of Justices, lawyer Andrew Horn asserted “abortion cannot be homicide because ‘no one can be adjudged an infant until he has been seen in the world so that it may be known whether he is a monster or no[,]’”10 a sentiment which, as two legal scholars put it, “reeks of either superstition or bias toward disabled persons.”11 Nineteenth century English legal historians described Horn’s work as “so
full of fables and falsehoods that as an authority it is worthless.”12 The other source may be disregarded as simply wrong on the legal procedure for prosecuting the crime.13
¶83 English common law unvaryingly treated abortion as a crime. Current scholarship verifies “that by the close of the seventeenth century, the criminality of abortion under the common law was well established. Courts had rendered clear holdings that abortion was a crime, no decision indicated that any form of abortion was lawful, and secondary authorities similarly uniformly supported the criminality of abortion.”14 After reviewing the historical record, the United States Supreme Court concluded, “although common-law authorities differed on the severity of punishment for abortions committed at different points in pregnancy, none endorsed the practice. Moreover, we are aware of no common-law case or authority, and the parties have not pointed to any, that remotely suggests a positive right to procure an abortion at any stage of pregnancy.” Dobbs, 597 U.S. at 245.
¶84 William Blackstone summarized prevailing public sentiment in the 18th century on the subject of abortion; while society had softened its ancient condemnation of the practice, it nonetheless treated abortion as a crime:
Life is the immediate gift of God, a right inherent by nature in every individual, and it began in contemplation of law as soon as an infant was able to stir in the mother’s womb. For if a woman is quick with child, and by a potion or otherwise, killeth in her womb, or if anyone beat her whereby the child dieth in her body, and she is delivered of a dead child; this, though not murder, was by the ancient
law homicide or manslaughter. But the modern law doth not look upon this
offence in quite so atrocious a light, but merely as a heinous misdemeanor.15
The meaning and relevance of “quickening” and “quick with child” have been obscured by linguistic misunderstanding. In 1861, Francis Wharton explained that neither “medical experience” nor the common law provide any evidence of abortion prohibitions being applied only after quickening, giving the term its commonly assigned meaning of the child‘s movement being felt in the womb.16 Legal scholar Philip Rafferty‘s research reveals the phrase “quick with child” simply meant the mother was pregnant with a living child.17
¶85 The concurrence promotes the theory that abortion was permissible up to the point of “quickening,” until male physicians—with anticompetitive (if not racist) motives—successfully lobbied legislatures across America to ban it altogether in the nineteenth century. Concurrence, ¶43–46. The English common law‘s treatment of abortion reflects the primitive state of medical technology during that era, which precluded proof of pregnancy until several months after conception.18 In light of the limited medical understanding at the time, a careful reading of the historical record reveals the concept of quickening was not based on some progressive pro-abortion view held by founding-era Americans, but rather developed from ignorance of when life began.19
Reading today‘s majority opinion is a follow-the-white-rabbit experience. One is left feeling like Alice, invited by the Queen to believe “‘as many as six impossible things before breakfast.‘” Carroll, Through the Looking-Glass 100 (1899). Indeed, the story told by the majority is a strange one. In it, all the luminaries of the western legal tradition—from Sir Edward Coke and William Blackstone to Edmund Burke and Thomas Jefferson—would celebrate and enshrine a right to nearly unfettered abortion access. In this imagined world, the Liberty Bell rings every time a baby in utero loses her arm.
440 P.3d 461, 517 (Kan. 2019). In the real world of colonial America, James Wilson, “a key founding father, natural law scholar, and one of the first justices to sit on the U.S. Supreme Court,”20 summarized the actual law governing abortion in the 18th century, which bears no resemblance to the world imagined by the concurrence:
With consistency, beautiful and undeviating, human life, from its commencement to its close, is protected by the common law. In the contemplation of law, life begins when the infant is first able to stir in the womb. By the law, life is protected not only from immediate destruction, but from every degree of actual violence, and, in some cases, from every degree of danger.21
The strange stories told in Hodes and repeated by the concurrence in this case have been decisively debunked by legal scholars and historians alike.22
¶87 While relevant court records from colonial America are scarce, the available evidence refutes Chief Justice Karofsky‘s claim that abortions were “widely available” and “prior to quickening” were “commonplace and unquestioned.” Concurrence, ¶39. In his exhaustive treatise on the history of abortion, Professor Joseph W. Dellapenna documents existing court records from the colonial era detailing the prosecution of acts of abortion. In Commonwealth v. Mitchell,23 a Maryland case from 1652, the defendant—a married man—was charged with forcing his mistress, Susan Warren, to ingest a substance after she disclosed her pregnancy. Mitchell was indicted for having “endeavored to destroy or Murther the Child by him begotten in the Womb.”24 During her deposition, Warren said of her pregnancy that “it was a great sin to get it, but a greater to make it away.”25
¶88 In Rex v. Hallowell,26 a Connecticut doctor was indicted after performing an
¶89 The laws of New York also criminalized abortion. A 1716 New York municipal ordinance prohibited midwives from performing or facilitating abortions for their patients: “You [midwives] Shall not Give any Counsel or Administer any Herb Medicine or Potion, or any other thing to any Woman being with Child whereby She Should Destroy or Miscarry of that she goeth withall before her time.”30
¶90 “A final confirmation of the reality that abortion was not only generally condemned and illegal, but that abortion was also a rare event in American society is found in the diary of midwife Martha Ballard.”31 In her diary, Ballard details her decades-long career as a midwife from 1785–1812 and refers to many instances of incest, illegitimacy, and child abuse, but not a single abortion.32 Either Ballard regarded abortion as too vile to mention despite vividly describing other disturbing events, or she never performed or encountered the practice.33 Given the prevailing proscription of abortion in colonial America, it was likely the latter.
¶91 An 18th century jurist, James Parker, authored “one of the few secondary sources on the common law as applied in any American colony,” summarizing the common law on abortion as applied in New York:
If a physician or surgeon give a person a potion, without any intent of doing him any bodily harm, but with intent to cure or prevent a disease, and contrary to the physician or surgeon‘s expectation it kills him, this is no homicide. . . . But if a woman be with child and any gives her a [potion] to destroy the child within her, and she takes it, and it works so strongly that it kills her, this is murder; for it was not given to cure her of a disease, but unlawfully to destroy the child, within her . . . .34
Under New York law, abortion was illegal. A physician therefore committed murder if a woman died as a result of his attempted abortion, which was not regarded as medical care.
¶92 Colonial Massachusetts treated the unborn child as a life separate and apart from the mother.35 Bethesda Spooner was
II
¶93 The concurrence absurdly compares abortifacients to “feminine hygiene products” and characterizes abortion in the eighteenth century as “far safer than childbirth.”38 Concurrence, ¶¶40–41. According to the concurrence, “substances known to end pregnancies, were openly sold in stores and door-to-door.” Id., ¶40. Setting aside the prevalence of sometimes violent attacks on the women‘s body as a method of abortion,39 the ingestible substances peddled to induce abortion were “nearly as painful and deadly as the worst injury techniques until well into the nineteenth century, and thus also were tantamount to suicide.”40
¶94 In fact, “many modern poisons were discovered through the search for a safe dosage of abortifacients.”41 Parsley oil, a seemingly innocuous extract, was historically used to induce abortions when consumed in large quantities, but it could also cause paralysis of the nervous system.42 Savin oil, popular for its ostensible efficacy in producing abortions, also resulted in the death of the mothers to whom it was administered.43 Even the undergraduate research article cited by the concurrence admits that many abortion “home remedies . . . severely compromised the health of the mother.”44
¶95 A final alternative, the insertion of an instrument through the cervix into the uterus to induce abortion—without antiseptics or anesthesia, and often with “profound ignorance of the female reproductive anatomy“—killed at least one third of the women who received such abortion “care” in the early 1800s.45 The deaths stemmed from infection, the puncturing of
III
¶96 The concurrence attempts to slander opponents of abortion by depicting the “crusade” of Horatio Storer—a prominent obstetrician and nineteenth century anti-abortion advocate—as rooted in racism and sexism. Concurrence, ¶¶43–47. It characterizes Storer as the ostensible “father” of the modern pro-life movement, which it seeks to discredit by portraying Storer‘s motivations as steeped in misogyny and fueled by concern over “the population decline of ‘native-born,’ White Americans.” Id., ¶43. Whether the concurrence‘s portrayal of Storer is true or not,47 focusing on the motives of the activists on either side of the abortion issue does not help Chief Justice Karofsky‘s cause. The “mother” (aka “birthing person“) of the pro-abortion movement, Margaret Sanger, was so driven by racism and eugenics that even Planned Parenthood of Greater New York canceled her.48
IV
¶97 Chief Justice Karofsky tells stories about women who recently died after ingesting abortion pills or during a miscarriage, blaming restrictive abortion laws for their tragic deaths. It isn‘t the law that caused the deaths of these women. Amber Thurman did not lose her life because she lived in a state that “severely restrict[ed] abortion care in a manner similar to Urmanski‘s interpretation of
¶98 Georgia‘s abortion law “explicitly allows physicians to intervene in cases of medical emergencies or if the fetus has no
¶99 Candi Miller‘s death also occurred in Georgia, and pro-abortion advocates claim Miller died due to Georgia‘s abortion law. Their articles convey nothing more than speculation and selective “facts.” Miller had lupus, diabetes, and hypertension.51 She died at home two days after it is presumed she took an abortion pill she ordered online.52 The autopsy report revealed the “cause of death” as “[c]ombined [d]rug (Fentanyl, Acetaminophen, Diphenhydramine) [i]ntoxication.” The “manner of death” was “undetermined.”53
¶100 Irrespective of what caused Miller‘s death, doctors would have been legally required to provide medical care and Miller would not have faced any criminal prosecution for inducing a “self-managed” abortion.54 Similar to colonial times, peddlers of abortifacient pills market them as safe despite their documented risks.55 Unlike colonial times, effective medical care is available to women who attempt “self-managed” abortions, but fear-mongering pro-abortion propagandists convince women otherwise, with fatal and tragic consequences.
¶101 Joselli Barnica died from apparent gross medical malpractice by physicians who reportedly withheld medically necessary care while she suffered a miscarriage.56 Even the progressive media outlet ProPublica acknowledges as much.57
We mourn the tragic loss of Josseli Barnica. Her death was preventable. But let‘s be crystal clear: Texas’ law and every pro-life state law calls on doctors to act in circumstances just like Josseli‘s,” said SBA Pro-Life America‘s State Policy Director Katie Daniel. No pro-life laws prevent doctors from providing emergency care for expectant moms, they must intervene to save women‘s lives—and in Texas, the numbers show that there are doctors who understand the law.
Doctors who fail to provide necessary medical care should be held accountable.
Lies to women about their pregnancy care are at the root of this tragic case. The law is clear, but the media and abortion advocates have created confusion where there should be none. Texas law, like pro-life laws in every other state, allows emergency care, miscarriage care and treatment for ectopic pregnancy. Claims that abortion laws prevent emergency care are precisely the problem. States like Texas, South Dakota and Florida are taking crucial steps to mitigate misinformation by educating doctors that they must exercise their reasonable medical judgment and intervene in life-threatening situations. But politicians and the media must also do their part.58
The same could be said for judges, who should stick to rendering opinions on the law rather than publishing policy position papers.
* * *
¶102 In her concurrence, Chief Justice Karofsky honors the lives of three women who died after attempting to abort their children and the life of another who died from medical malpractice during a miscarriage. She understandably mourns these women. America mourns with her. Legal judgments, however, must be grounded in law, not grief. Judges incapable of rendering impartial judgments based on the law must recuse. See
¶103 With no apparent sense of irony, the concurrence claims abortion restrictions amount to “death warrants” for women, ignoring the people who feel just as passionately that abortion kills innocent
¶104 “The people must know better than the court what their own morality and their own opinion is. I ask that . . . you the people, be given the chance to state your own views of justice and public morality, and not sit meekly by and have your views announced for you . . . .” ADDRESS BY THEODORE ROOSEVELT, THE RIGHT OF THE PEOPLE TO RULE, S. DOC. 62-473, at 7 (2d Sess. 1912).
¶105 When what is supposed to be the weakest branch of government61 erases the constitutional lines demarcating the boundaries of authority the People gave each branch, the court arrogates king-like power unto itself, “laying hold of popular disquietudes” to ultimately “sweep away the liberties of the [people] like a deluge.”62 Circumventing the democratic process to more quickly conform the law to a majority‘s desires may be tempting, but tolerating a court‘s exercise of unauthorized power imperils the People‘s liberty. Ultimately, it is up to the people to state their views on this issue, as all others, and not sit by while four lawyers impose their own.
BRIAN K. HAGEDORN, J., with whom REBECCA GRASSL BRADLEY, J., joins, dissenting.
¶106 The Wisconsin Constitution vests the lawmaking power of the people in the state legislature. But today, the Wisconsin Supreme Court effectively deletes a law from the books, taking this power unto itself. Sure, the majority opinion is laden with legal jargon a reader might think reflects a reasoned judicial opinion. Don‘t be fooled. This is pure policymaking, driven by antagonism toward a law the majority does not like. The end result is that the policies enacted by the people‘s representatives are gone—scratched out with a giant judicial eraser.
¶107 This decision does not derive from a neutral application of the law; it does not even pass the smell test. But it is more than that. If the people‘s policy choices will be constantly second-guessed by this court, our very system of self-government is in danger. The abortion policies the court wipes away today were passed by the legislature and signed by the governor. These policy questions will continue to divide Wisconsinites. But the question of who decides what the law should be ought not divide us. Today, the court aggrandizes power to itself, rewrites the law in its own image, and undermines our constitutional order. I dissent.
I. WHAT THIS CASE IS ABOUT
¶108 Although the details have changed, Wisconsin has banned abortions in some capacity since its founding. The majority highlights that the first version of the statute at issue here dates to 1849, and three times calls it the “19th century near-total ban on abortion.” This odd emphasis on age is a not-so-subtle insinuation that the law has less legitimacy because its roots extend deep into the past. There is, of course, no legal or logical basis to suggest
¶109 This case is also not about the wisdom of the state‘s longstanding criminal prohibition on abortion. The courts of this state have been given no authority to decide such policy questions. The constitution recognizes that it is the people, through their representatives in the state legislature, who have the power to decide what laws should govern them.3 If this statute no longer reflects the policy preferences of the people of Wisconsin, the remedy is for the people‘s elected representatives to amend the law. But four justices cannot make that decision for them.
¶110 The actual legal question at the heart of this case is whether
¶111
¶112 To state the obvious, this statute serves as a criminal ban on most abortions.
¶113 The question, then, is whether
II. WAS Wis. Stat. § 940.04(1) IMPLIEDLY REPEALED?
A. IMPLIED REPEAL GENERALLY
¶114 The petitioners invoke the rarely used, highly disfavored doctrine of implied repeal. The majority concludes
¶115 At its core, implied repeal is a question of statutory interpretation. Our role in reading statutes is to determine—neutrally, reasonably, and in context—what the legislature meant by the words it enacted.5
¶116 The general rule is when the legislature enacts a statute, it remains the law unless and until the legislature enacts a new statute repealing it. In exceedingly rare circumstances, however, courts have determined that a law that remains on the books has been impliedly repealed by a later legislative enactment. But anyone asserting this must overcome a strong legal presumption against this finding. See ANTONIN SCALIA & BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS
¶117 First, courts presume that when the legislature creates new laws, it knows what‘s already there on any particular topic and intends to create a “consistent body of law.” 1A SHAMBIE SINGER, SUTHERLAND STATUTORY CONSTRUCTION, § 23:9 (8th ed. 2025); see also 2B NORMAN J. SINGER & J.D. SHAMBIE SINGER, SUTHERLAND‘S STATUTES AND STATUTORY CONSTRUCTION, § 51:2 (7th ed. 2012); Mack v. Joint Sch. Dist. No. 3, 92 Wis. 2d 476, 489, 285 N.W.2d 604 (1979). Without the foundational presumption that the legislature is attempting to create a coherent and complementary body of law, it would be impossible to determine what the effect of any law is. United States v. Hansen, 772 F.2d 940, 944 (D.C. Cir. 1985). Implied repeal, on the other hand, is a conclusion that the legislature wasn‘t consistent and didn‘t realize the effect of its later enactment. Id. at 944–45. Given the gravity of this conclusion, we better be sure if we‘re going to decide that the legislature repealed a law implicitly when it did not do so the normal way—through explicit repeal. Id. at 945.
¶118 In addition, the reticence to declare a law impliedly repealed is rooted in our duty to stay in our constitutional lane. The constitution vests the legislature with the authority to write statutes and to remove them. See
¶119 Yet, on rare occasions, courts have concluded that a statute has been impliedly repealed. The cases fall into two categories. One is when the legislature enacts a law that creates an “irreconcilable conflict” with an older law on the same subject, such that a person could not possibly comply with both. See State ex rel. City of Milwaukee v. Milwaukee Elec. Ry. & Light Co., 144 Wis. 386, 394, 129 N.W. 623 (1911); Fleming v. Barry, 21 Wis. 2d 259, 267, 124 N.W.2d 93 (1963); Jicha v. Karns, 39 Wis. 2d 676, 680, 159 N.W.2d 691 (1968). The second category is when the legislature enacts a “later and more general act [that] governs the whole subject to which it relates, and is manifestly designed to embrace the entire law” on a particular subject. Gymnastic Ass‘n of the South Side of Milwaukee v. City of Milwaukee, 129 Wis. 429, 432, 109 N.W. 109 (1906); see also State v. Campbell, 44 Wis. 529, 535 (1878).
¶120 When faced with an implied repeal argument, our starting point is to construe the statutes together, giving all provisions under consideration their full effect. If there is any way the statutes can be given “a construction which will give an operation to both,” we must do so. Att‘y Gen. ex rel. Taylor v. Brown, 1 Wis. 442 [513*], 451–52 [525*] (1853). Only in the face of incontrovertible evidence from the plain meaning of the statutory text that the legislature must have meant to repeal an earlier statute will we conclude an earlier statute is impliedly repealed. See State ex rel. Hayden v. Arnold, 151 Wis. 19, 29, 138 N.W. 78 (1912); City of Madison v. S. Wis. Ry. Co., 156 Wis. 352, 360, 146 N.W. 492 (1914). And even then, we will only find the earlier statute impliedly repealed to the extent the earlier statute and later statute are irreconcilable, or the later statute necessarily restricts or modifies the earlier statute because of the later statute‘s express terms. McLoughlin v. Malnar, 237 Wis. 492, 497, 297 N.W. 370 (1941). In this way, we respect the legislature‘s role in the constitutional order by presuming it has diligently carried out its own role.
¶121 The majority concludes the legislature repealed
B. IMPLIED REPEAL BY SUBSTITUTION
¶122 For a court to find that the legislature impliedly repealed a statute through a later substitute, a litigant must demonstrate that the legislature designed a newer law to act as a substitute for all previous laws on the topic. 82 C.J.S. Statutes § 330 (2025). Quoting a leading treatise, we explained in State v. Campbell that a statute is impliedly repealed when a “subsequent statute” revises “the whole subject matter of a former one,” and is “evidently intended as a substitute for it.” 44 Wis. at 535. We can therefore break it down into three prerequisites: 1) a singular act; 2) covering the whole field; 3) that was clearly intended to be the sole governing law on the topic.
1. A Singular Act
¶123 First, our cases on implied repeal suggest that, when working under the later comprehensive act theory, the substitute must be just that—an act reflecting a new statutory scheme. This is because under that theory of implied repeal, the later act must by necessary implication subsume everything that came before, not just cause an apparent conflict here or there. No Wisconsin authorities cited by the parties support the notion that a series of discrete and narrower statutes enacted over time comprise a “substitute” act or “cover the field“—nor has my research uncovered any.
¶124 Although all of our cases bear this out, our discussion in Wisth—a case relied on by the majority—is particularly helpful.6 There we said that a substitutionary act is one in which the
¶125 We pulled this definition from a well-respected treatise, which explained:
Statutes in pari materia, and relating to the same subjects, are to be taken and construed together because it is to be inferred that they had one object in view and were intended to be considered as constituting one entire and harmonious system. But when the new statute, in itself, comprehends the entire subject, and creates a new, entire, and independent system, respecting that subject matter, it is universally held to repeal and supersede all previous systems and laws respecting the same subject matter.
1 FRANK E. HORACK JR., SUTHERLAND’S STATUTES AND STATUTORY CONSTRUCTION § 2018 (3d ed. 1943) (emphasis added) (citation omitted). In other words, where multiple enactments addressing the same subject are spread across the statute books, we read them together as comprising the governing law on the matter. Legislatures, after all, often pass cumulative or explanatory statutes to build upon earlier ones or make them more effective. Milwaukee Elec. Ry. & Light Co., 144 Wis. at 394; see 82 C.J.S.
¶126 The majority, however, does not point to a singular act. Instead, it relies on a host of disparate and often overlapping abortion-related statutes passed over the course of decades. Moreover, the majority does not say when over those 40 years the legislature once and for all repealed
¶127 The majority does not offer any Wisconsin authorities that justify its unprecedented approach. The one case it does cite concerns an antitrust doctrine that “addresses situations in which there is no explicit statutory exception to antitrust law but it is reasonably clear that the legislature intended to allow municipalities to undertake an action that is anticompetititve.” Eichenseer v. Madison-Dane Cnty. Tavern League, Inc., 2008 WI 38, ¶39, 308 Wis. 2d 684, 748 N.W.2d 154. The type of antitrust immunity doctrine discussed in Eichenseer cites to no Wisconsin implied repeal cases, involves a test used in no implied repeal cases, and has never been relied upon for an implied repeal case as that doctrine has been used and understood since before the state’s founding. It is simply an altogether different doctrine than the implied repeal doctrine the majority invokes.
¶128 The majority, then, cannot identify a single Wisconsin authority employing the covering-the-field theory of implied repeal in a way that supports its novel approach here.8 It holds that a whole series of discrete laws over decades were meant by the legislature to be the sole governing law on a topic and repealed just one of the statutes that came before. The majority may style itself as just applying established law, but it is doing nothing of the sort; its newly invented cover-the-field rule has no precedent in the Wisconsin reports.
2. Covering the Field
¶129 Second, and relatedly, the act must show that the legislature intended it to “cover the whole subject” through its comprehensiveness. This can be shown in two different ways.
¶130 The first is when it revises and codifies all existing laws on a subject. Milwaukee Elec. Ry. & Light Co., 144 Wis. at 395; see also Campbell, 44 Wis. at 535. For example, a recodification law may include language that earlier laws conflicting with it are “hereby repealed,” which this court has found to mean the law was a substitute for all that came before, whether actually conflicting or not. See Campbell, 44 Wis. at 534–35; City of Madison, 156 Wis. at 362 (saying this language was “the ordinary way of closing a new enactment . . . designed to take the place of all prior laws on the subject”). In one case, for instance, when an ordinance applying to railroad maintenance included this repealing language, we found that it was the legislature’s “intention . . . to make a complete charter” on the topic. City of Madison, 156 Wis. at 364. As such, it repealed an earlier, non-conflicting ordinance on the topic. See id. at 362–63. Or, more obviously, when an act explicitly says it is an “act to revise and codify” certain statutes, it will be found to repeal earlier laws on the same subject. State ex rel. Thompson v. Beloit City Sch. Dist., 215 Wis. 409, 412, 414, 253 N.W. 598 (1934).
¶131 The second way is when the new act “is so broad in its terms and so clear and explicit in its words,” that repeal of what came before is the obvious and necessary conclusion. Ward v. Smith, 166 Wis. 342, 344, 165 N.W. 299 (1917). This occurs when the scope of the second act is so large concerning a particular subject that it “swallows up” earlier, discrete acts on a
¶132 As before, the majority does not even try to tailor its analysis to the proper legal test, and its logic fits neither of these categories. The majority points to no statutory language suggesting a revision and codification meant to cover
¶133 Rather than follow existing cover-the-field law, the majority instead asks if the new collection of laws answer the “who, what, where, when, and how” of abortion. The majority provides no legal support for why this is the appropriate standalone question. After all, newer laws can answer lots of questions, but that doesn’t mean they repeal any older law on the same topic. In any event, the enacted statutes do not do what the majority says. The majority points to
¶134 The majority also makes a kind of surplusage argument. It contends that if
subject to criminal liability under the 20-week abortion ban, there is no reason why the physician performing the abortion could not be charged under
¶135 In short, the majority does not present a logical case for why discrete and narrower laws that prescribe some rules regarding when abortion is illegal and how it must be performed can serve as a complete and total substitute for all abortion laws in the statutes—including a broader statute that applies to nearly all abortions. Once again, the majority makes no effort to apply established law in this area, blazing new legal ground in service of its outcome-focused approach.
3. Clear Legislative Intent
¶136 Thus far, we have seen that implied repeal of the kind adopted by the majority requires a singular act covering the entire subject area of abortion. The final inquiry is an honest assessment of whether the legislature clearly meant to repeal the law.11 Implied repeal is a dramatic
holding
¶137 To determine what the legislature intended, we look to the plain meaning of the statutory text. State ex rel. Kalal v. Cir. Ct. for Dane Cnty., 2004 WI 58, ¶44, 271 Wis. 2d 633, 681 N.W.2d 110. This includes looking at the statute’s structure and historical context. See id., ¶46; Brey v. State Farm Mut. Auto. Ins. Co., 2022 WI 7, ¶20, 400 Wis. 2d 417, 970 N.W.2d 1. Since we presume that the legislature is knowledgeable about existing laws, statutes “must be interpreted in light of . . . the scheme of jurisprudence existing at the time of its enactment.” Strenke v. Hogner, 2005 WI 25, ¶28, 279 Wis. 2d 52, 694 N.W.2d 296; see also Mack, 92 Wis. 2d at 489. When asking whether a statute has been impliedly repealed, we try to make sense of the legislature’s enactments. For example, if the allegedly repealed statute was “an obscure and little-noticed provision whose existence the legislature may have overlooked,” that might explain why it was not explicitly repealed. State v. Dairyland Power Coop., 52 Wis. 2d 45, 52, 187 N.W.2d 878 (1971).
¶138 We also consider whether the legislature ever acknowledges or takes actions regarding the alleged statute after its supposed repeal, which would strongly suggest the legislature meant for the law to remain enforceable. Of particular import here, we have said that when the legislature amends a statute and does not explicitly repeal it, a “finding of a repeal by implication [is] simply impossible.” Id.
¶139 When we interpret the relevant legislative enactments, it is glaringly obvious that the legislature did not intend to repeal
¶140 In Roe v. Wade, the United States Supreme Court considered the constitutionality of a Texas law that prohibited abortion. 410 U.S. 113 (1973), overruled by Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022). The Court created a trimester framework for balancing a mother’s rights against the state’s interest in unborn life.12 Id. at 162–65. The Court determined that the most critical line for balancing these interests was viability, by which it meant whether the unborn child could survive outside the womb. Id. at 160. It pegged that line at about seven months, after the second trimester. Id. at 160, 164. Thus, the Court held that before viability, abortion could only be regulated in ways “reasonably related to maternal health” to comport with due process. Id. at 164. As a consequence, the Court concluded that state statutes restricting legal abortions except to save the life of the mother swept too broadly. Id. The Court directly cited
¶141 Roe also established boundaries around when and how states could restrict or regulate abortion. The Court said that states could pass regulations such as who could perform abortions, where they could do so, and what licensing requirements abortion providers would need to obtain. Roe, 410 U.S. at 163. The Court in Roe also told states the extent to which they could still criminalize or restrict abortions. It said that if a state was “interested in protecting fetal life after viability, it may go so far as to proscribe abortion during that period, except when it is necessary to preserve the life or health of the mother.” Id. at 163–64.
¶142 With
¶143 If this copy-and-pasted-language were not obvious enough, the legislative history confirms this is what the legislature intended. A memo drafted by Legislative Council staff a year after
¶144 The legislature’s post-Roe regulatory statutes likewise were not intended as a comprehensive scheme to implicitly repeal
¶145 It is no surprise, then, that the Wisconsin Legislature followed the parameters outlined by the U.S. Supreme Court. It enacted a host of regulatory laws around abortion to fit within what the Court said was permissible.14 These laws do not somehow prove a legislative effort to
repeal
¶146 If all this were not enough, this court affirmed in 1994 that the reason for the post-viability ban in
¶147 In response to this decision, the legislature reinforced its intention to keep
¶148 The majority does not have an explanation for this, so it engages in misdirection. Despite the enactment saying
¶149 The 1997 amendment should be enough to kill any notion that the legislature
¶150 In 2001, even though it was still unenforceable under Roe, the legislature amended
¶151 The majority’s response to this change is also a non sequitur. The majority thinks it scores a point by saying there are “explanations for these changes,” and points out this occurred as part of the legislature’s larger Truth-in-Sentencing changes. Once again, so what? Of course the legislature had a reason for amending the statute. It is black letter law that when the legislature amends a statute in this way and does not repeal it, a “finding of a repeal by implication [is] simply impossible.” Dairyland Power Coop., 52 Wis. 2d at 52. The majority’s argument is, quite literally, that the legislature amended a statute it already repealed. So in effect, this amendment was just one big oopsie. If that sounds like nonsense, it’s because it is.17
¶152 Given the 2001 amendment, the legislative intent not to repeal the law is abundantly clear—but there’s more.
¶153 Ten years later, the legislature again amended
¶154 The majority tries to explain away this amendment to
¶155 The majority opinion entirely depends on the claim that multiple statutes—most of them enacted before the 2011 amendment—impliedly repealed the broad criminal prohibition of abortion in
¶156 In 2015, the legislature responded to another Supreme Court case when it criminalized abortions 20 weeks postfertilization in 2015. See 2015 Wis. Act 56, § 7;
¶157 And also in 2015, the legislature once again referenced
¶158 What does the majority have to say about the legislature’s latest reference to
¶159 All of this statutory and legal history is conclusive. To find implied repeal, the legislative intention to repeal
C. CONCLUSION
¶160 Putting this 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.
¶161 Instead, when we look at what the legislature did, an obvious story emerges. The legislature enacted criminal and regulatory laws governing abortion while
¶162 In light of the overwhelming evidence that the legislature did not repeal
Notes
(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:
(a) Intentionally destroys the life of an unborn quick child; or
(b) Causes the death of the mother by an act done with intent to destroy the life of an unborn child. It is unnecessary to prove that the fetus was alive when the act so causing the mother’s death was committed.
. . . .
See Justice Hagedorn’s dissent, ¶126. 6 JAMES D. RICHARDSON, A COMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789–1897, at 9 (1897). No one suggests, for example, that theThe major rationale of the presumption, in modern times at least, is not that Congress is unlikely to change the law . . . but rather, that Congress “legislate[s] with knowledge of former related statutes,” and will expressly designate the provisions whose application it wishes to suspend, rather than leave that consequence to the uncertainties of implication compounded by the vagaries of judicial construction.