Wisconsin’s 1849 abortion law no longer bans consensual abortion. On July 2, 2025, the Wisconsin Supreme Court held in Kaul v. Urmanski that the legislature had impliedly repealed the near-total ban in Wisconsin Statute section 940.04 by passing decades of comprehensive abortion regulations that only make sense if abortion is legal within the limits those statutes set.1Wisconsin Court System. Kaul v. Urmanski, 2025 WI 32 Abortion in Wisconsin is now governed by those modern regulations, not by the 19th-century statute.
What the 1849 Statute Said
The original law, enacted as chapter 133, section 11 of Wisconsin’s territorial-era statutes, made it a crime to give a pregnant woman any drug or substance, or to use any instrument, with the intent to destroy a “quick child.” “Quick child” was a legal term for the point in pregnancy when the mother could feel fetal movement, typically around 16 to 20 weeks. The only exception was when the procedure was necessary to preserve the mother’s life, or was advised by two physicians as necessary for that purpose. If the mother or child died, the person was guilty of second-degree manslaughter.2Wisconsin State Legislature. A Brief History of Abortion Laws in Wisconsin
The statute was later recodified as section 940.04 and rewritten over time. The version in place when the U.S. Supreme Court decided Dobbs v. Jackson Women’s Health Organization in June 2022 dropped the quickening distinction and extended the prohibition to any point from conception forward, defining “unborn child” as a human being from conception until born alive.3Wisconsin State Legislature. Wisconsin Statutes 940.04 – Abortion For nearly 50 years after Roe v. Wade, the statute sat dormant. When Dobbs removed the federal right to abortion, it suddenly mattered again, and Wisconsin clinics halted services while doctors worried about felony prosecution.4Supreme Court of the United States. Dobbs v. Jackson Women’s Health Organization
How the 2025 Ruling Resolved the Question
Attorney General Josh Kaul sued district attorneys who signaled they would enforce section 940.04, asking a court to declare that the statute did not ban consensual abortions. The Dane County Circuit Court agreed, and the case moved up to the Wisconsin Supreme Court.5Justia Law. Kaul v. Urmanski – Wisconsin Supreme Court
The court applied the doctrine of implied repeal by substitution. Over the past 50 years, the Wisconsin legislature had enacted statutes regulating nearly every aspect of abortion: where it can be performed, by whom, at what gestational age, what information must be given to the patient, and how it can be funded. The court concluded that this body of law was so thorough that it was clearly intended to replace the 19th-century blanket prohibition.1Wisconsin Court System. Kaul v. Urmanski, 2025 WI 32
The practical logic is straightforward. If abortion were already a felony at every stage except to save the mother’s life, the legislature would have had no reason to separately criminalize post-viability abortions, create elaborate informed consent procedures, or address public funding for the procedure. Those regulatory statutes only make sense if the legislature understood abortion to be legal within the boundaries they set.
What Still Survives of Section 940.04
The ruling did not erase the entire statute. Subsection (2)(a), which addresses the destruction of an unborn “quick child,” remains in effect as a feticide statute. It applies when a third party’s violence against a pregnant person causes the death of the unborn child. It does not apply to consensual abortions performed by a physician.3Wisconsin State Legislature. Wisconsin Statutes 940.04 – Abortion The old statute still carries weight in Wisconsin criminal law, but its surviving purpose is punishing violence against pregnant people, not regulating reproductive medicine.
What Governs Abortion in Wisconsin Now
With the 1849 ban off the table, abortion in Wisconsin is governed by the modern statutes the court identified as the “comprehensive legislation” that replaced it. These rules remain restrictive, and patients and providers must follow them.
- Abortion after fetal viability is a crime under section 940.15, with an exception when necessary to preserve the life or health of the woman.
- Section 253.10 requires a physician to deliver detailed informed consent in person at least 24 hours before the procedure, covering gestational age, medical risks, fetal development, and the availability of ultrasound imaging.6Wisconsin State Legislature. Wisconsin Statutes 253.10 – Voluntary and Informed Consent
- Because that consent must be delivered in person and a 24-hour waiting period follows, patients make at least two separate trips to a clinic.
- A minor must obtain parental consent or a court waiver under section 48.375.
- Section 253.095 requires physicians performing abortions to hold admitting privileges at a hospital within 30 miles of the facility.
- Section 66.0601(1)(c) restricts the use of government funds for abortion services.
The in-person, two-visit structure and the admitting-privileges rule create particular barriers for patients in rural parts of the state who must travel long distances to reach a provider.
Federal Emergency Care Still Applies
The federal Emergency Medical Treatment and Labor Act (EMTALA) requires any hospital that accepts Medicare funding to screen and stabilize patients with emergency medical conditions, including pregnant patients. If a pregnancy complication threatens serious harm, the hospital must provide stabilizing treatment or arrange a transfer to a facility that can. No Wisconsin hospital can turn away a patient experiencing a life-threatening pregnancy emergency.
Whether EMTALA overrides restrictive state abortion laws remains an unsettled federal question. The U.S. Supreme Court took up the conflict in Moyle v. United States but dismissed the case without resolving it.7Supreme Court of the United States. Moyle v. United States Because Kaul removed Wisconsin’s near-total ban, that preemption fight matters less here than in states with enforceable bans. In June 2025, the U.S. Department of Health and Human Services rescinded its 2022 guidance that had specifically reinforced EMTALA obligations for pregnant patients, while stating that EMTALA’s core stabilization requirement remains in effect.