Case: Kaul v. Kapenga

In this case, plaintiffs sought a declaration that a Wisconsin criminal law broadly banning abortions is 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 conflict and cannot 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 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—seeking a declaratory judgment that § 940.04 is unenforceable. Under Count I, plaintiffs alleged a more recent statutory regime superseded the older statute, which operated as a broader ban on abortions.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 is 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. Their motion was granted on November 18, 2022. Defendants have 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. In its order, the court held that § 940.04 criminalized feticide, not abortion, and 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 Attorney General filed a motion for judgment, asking the Dane County Circuit Court to enter final judgment and confirm that statute § 940.04 does not criminalize abortion. Defendants filed a motion for reconsideration to the court on September 15. 

Subsequently, on December 5, 2023, Judge Diane Schlipper of the Wisconsin Circuit Court granted summary judgment for the physicians, declaring that Wisconsin Statute § 940.04 did not prohibit abortions despite defendants' motion for reconsideration. However, Judge Schlipper denied plaintiffs' request for an injunction. The defendants claimed they would abide by the Court's order and that the declaratory judgment should be the functional equivalent of injunctions when applied to government parties. Because there was no reason to believe the defendants would renege, and because an injunction would only apply to the specific defendants and not to all Wisconsin district attorneys, the court denied the motion for injunctive relief.

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. The Court granted the intervenor physicians motion to intervene on September 24. 

As of November 5, 2024, the appeal is pending before the Wisconsin Supreme Court.