On July 2, 2025, in a landmark decision for reproductive rights, the Wisconsin Supreme Court held that a law on the books from 175 years ago “does not ban abortion in the State of Wisconsin,” ending a three-year legal battle over the status of reproductive rights in the state. A Proskauer team filed an amicus brief in partnership with co-counsel Public Rights Project (“PRP”) on behalf of local elected officials to support the Plaintiff-Respondent in Kaul v. Urmanski and urge the Wisconsin Supreme Court to reach this conclusion.
The question at the heart of the case was whether Section 940.04 of the Wisconsin Code, which was first passed in 1849 and prohibits “intentionally destroy[ing] the life of an unborn child,” should be read as an abortion ban. The Plaintiff, Wisconsin Attorney General Josh Kaul, argued that the statute bans feticide, not abortion, and that any anti-abortion application was impliedly repealed by the raft of laws and regulations governing reproductive health access passed in the intervening 175 years.
Proskauer and PRP’s brief advanced two main arguments, in addition to supporting Plaintiff’s claim that any anti-abortion animus in Section 940.04 had been impliedly repealed by subsequent legislation. First, the brief argued that reading Section 940.04 as an abortion ban would undermine local governments by eroding public trust in local institutions. To support this argument, the brief cited research findings that pregnant women engaged less with the health care system in states that have criminalized abortion post-Dobbs v. Jackson Women’s Health Organization. Tellingly, this research found engagement with the health care system dropped even among women who had no intention of getting an abortion. The brief also cited findings that a decrease in public trust, reflected in decreased engagement with public health facilities, compromises public safety. In short, pregnant women are less likely to report crimes, including violent crimes, perpetrated against them when their own reproductive health care choices are subject to prosecutorial scrutiny.
Second, the brief argued that having local governments police and second-guess the judgment of health care professionals would be a misuse of local resources. Recent reporting has shown that local government budgets in Wisconsin are stretched thin, with numerous local prosecutor offices understaffed and suffering from significant case backlog. The brief pointed out that criminalizing reproductive health care decisions would only make this backlog worse by criminalizing private, personal and complex medical decisions that local prosecutors lack the expertise to properly analyze. Such criminalization would harm, not serve, the public interest by asking prosecutors to be doctors and doctors to be lawyers, when scarce resources could be better spent addressing real threats to the public.
Chief Justice Jill Karofsky cited the brief during oral argument, noting that, according to a Journal of the American Medical Association article cited by amici, approximately 65,000 pregnancies have been caused by rape in the 14 states that have outlawed abortion in the wake of the Dobbs decision, illustrating the harm of upholding the 1849 statute as an abortion ban.
The Proskauer team includes partner Margaret Dale, associates Kelly Landers Hawthorne, Beth Shrieves, Jana Ruthberg and Michael Beckwith and paralegal Angelo Monforte.
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