Wisconsin Statutes
Wis. Stat. § 940.04 (2026)
Abortion
✓ current as of July 2026
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940.04(1)(1) Any person, other than the mother, who intentionally destroys the life of an unborn child is guilty of a Class H felony.
940.04 NoteNOTE: The Wisconsin Supreme Court held in Kaul v. Urmanski, 2025 WI 32, that the legislature impliedly repealed sub. (1) as to abortion and that sub. (1) does not ban abortion in this state.
940.04(2)(2) Any person, other than the mother, who does either of the following is guilty of a Class E felony:
940.04(2)(b)(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.
940.04(5)(b)(b) Is necessary, or is advised by 2 other physicians as necessary, to save the life of the mother; and
940.04(6)(6) In this section “unborn child” means a human being from the time of conception until it is born alive.
940.04 AnnotationAborting a child against a father’s wishes does not constitute intentional infliction of emotional distress. Przybyla v. Przybyla, 87 Wis. 2d 441, 275 N.W.2d 112 (Ct. App. 1978).
940.04 AnnotationSub. (2) (a) proscribes feticide. It does not apply to consensual abortions. It was not impliedly repealed by the adoption of s. 940.15 in response to Roe, 410 U.S. 113 (1973). State v. Black, 188 Wis. 2d 639, 526 N.W.2d 132 (1994).
940.04 AnnotationThe common law “year-and-a-day rule” that no homicide is committed unless the victim dies within a year and a day after the injury is inflicted is abrogated, with prospective application only. State v. Picotte, 2003 WI 42, 261 Wis. 2d 249, 661 N.W.2d 381, 01-3063.
940.04 AnnotationBy enacting comprehensive legislation that covers the entire subject of abortion, the legislature impliedly repealed the 19th century near-total ban on abortion and sub. (1) therefore does not prohibit abortion in this state. Kaul v. Urmanski, 2025 WI 32, 417 Wis. 2d 257, 22 N.W.3d 740, 23-2362.
940.04 AnnotationThe state may prohibit first trimester abortions by nonphysicians. Connecticut v. Menillo, 423 U.S. 9, 96 S. Ct. 170, 46 L. Ed. 2d 152 (1975). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).
940.04 AnnotationDiscussing the viability of an unborn child. Colautti v. Franklin, 439 U.S. 379, 99 S. Ct. 675, 58 L. Ed. 2d 596 (1979).
940.04 AnnotationPoverty is not a constitutionally suspect classification. Encouraging childbirth except in the most urgent circumstances is rationally related to the legitimate governmental objective of protecting potential life. Harris v. McRae, 448 U.S. 297, 100 S. Ct. 2671, 65 L. Ed. 2d 784 (1980).
940.04 AnnotationDiscussing abortion issues. City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S. Ct. 2481, 76 L. Ed. 2d 687 (1983); Planned Parenthood Ass’n of Kansas City, Missouri, Inc. v. Ashcroft, 462 U.S. 476, 103 S. Ct. 2517, 76 L. Ed. 2d 733 (1983); Simopoulas v. Virginia, 462 U.S. 506, 103 S. Ct. 2532, 76 L. Ed. 2d 755 (1983).
940.04 AnnotationThe constitution does not confer a right to abortion. Therefore, a rational-basis review is the appropriate standard for a constitutional challenge to abortion laws. A law regulating abortion, like other health and welfare laws, is entitled to a strong presumption of validity. It must be sustained if there is a rational basis on which the legislature could have thought that it would serve legitimate state interests. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).
940.04 AnnotationWisconsin’s abortion statute, former s. 940.04, 1969 stats., is unconstitutional as applied to the abortion of an embryo that has not quickened. Babbitz v. McCann, 310 F. Supp. 293 (1970). But see Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215, 142 S. Ct. 2228, 213 L. Ed. 2d 545 (2022).
940.04 AnnotationWhen U.S. Supreme Court decisions clearly made Wisconsin’s antiabortion statute unenforceable, the issue in a physician’s action for injunctive relief against enforcement became mooted, and it no longer presented a case or controversy over which the court could have jurisdiction. Larkin v. McCann, 368 F. Supp. 1352 (1974).
Notes of Decisions
Cited in 19
cases (1 in the last 5 years), 1959–2025 · leading case: State v. Black, 526 N.W.2d 132 (Wis. 1994).
State v. Black, 526 N.W.2d 132 (Wis. 1994). “In case the death of the mother is thereby produced, it is unnecessary to prove that the fetus was alive when the act so causing her death was committed. Subsection 940.04(5), Stats.”
State Ex Rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997). “" Wis. Stat. § 940.04 (2)(a). As we noted in that case, "the words of the statute could hardly be clearer.”
Kennan v. Warren, 328 F. Supp. 525 (W.D. Wis. 1971). “' Kennan and his staff from activity relating to the performance of other than “therapeutic” abortions as defined in Section 940.04 (5), Wis.Stat.; and (3) a written warning by the Medical Examining Board of the State of Wisconsin, addressed to Dr.”
Josh Kaul v. Joel Urmanski, as DA for Sheboygan Cnty., WI, 2025 WI 32 (Wis. 2025). “It says that the legislature intended to create a “substitute” for the “near-total ban on abortion” in § 940.”
Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970). “He seeks an injunction restraining the defendants from enforcing a part of Wis.Stat. § 940.04 and a judgment declaring it unconstitutional.”
State v. Courchesne, 998 A.2d 1 (Conn. 2010). “2010) (designating killing of unborn child as feticide); Wis. Stat. Ann. § 940.04 (West 2005) (proscribing intentional destruction of life of unborn child but not classifying such crime as homicide).”
Kennan v. Nichol, 326 F. Supp. 613 (W.D. Wis. 1971). “Plaintiffs attack Sections 940.04(1) and (5) of the Wisconsin Statutes, contending that they violate the Constitution of the United States.”
Ankrom v. State, 152 So. 3d 397 (Ala. 2013). “04(1) (intentional destruction of the life of an unborn child) (2011) (see also Wis. Stat. Ann. § 940.04 (2)(a) (2005) (intentional destruction of the life of an "unborn quick child”)).”
Puhl v. Milwaukee Auto. Ins., 99 N.W.2d 163 (Wis. 1959). “In the Criminal Code of Wisconsin, sec. 940.04, Stats., abortion refers to an unborn child, and sub.”
State v. Deborah J.Z., 596 N.W.2d 490 (Wis. Ct. App. 1999). “8 This state's antiabortion statute, § 940.04, Stats., was rendered unenforceable by Roe v.”
State Ex Rel. Angela M.W. v. Kruzicki, 541 N.W.2d 482 (Wis. Ct. App. 1995). “He was charged with feticide pursuant to § 940.04(2)(a), STATS., which makes it illegal for any person, other than the mother, to intentionally destroy the life of an unborn child.”
Larkin v. Bruce, 352 F. Supp. 1076 (E.D. Wis. 1972). “” Section 940.04 is Wisconsin’s abortion statute.”
— Wis. Stat. § 940.04(1) — 9 cases
Kennan v. Warren, 328 F. Supp. 525 (W.D. Wis. 1971). “' Kennan and his staff from activity relating to the performance of other than “therapeutic” abortions as defined in Section 940.04 (5), Wis.Stat.; and (3) a written warning by the Medical Examining Board of the State of Wisconsin, addressed to Dr.”
Josh Kaul v. Joel Urmanski, as DA for Sheboygan Cnty., WI, 2025 WI 32 (Wis. 2025). “It says that the legislature intended to create a “substitute” for the “near-total ban on abortion” in § 940.”
Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970). “He seeks an injunction restraining the defendants from enforcing a part of Wis.Stat. § 940.04 and a judgment declaring it unconstitutional.”
Kennan v. Nichol, 326 F. Supp. 613 (W.D. Wis. 1971). “Plaintiffs attack Sections 940.04(1) and (5) of the Wisconsin Statutes, contending that they violate the Constitution of the United States.”
Babbitz v. McCann, 320 F. Supp. 219 (E.D. Wis. 1970).
— Wis. Stat. § 940.04(2) — 1 case
Josh Kaul v. Joel Urmanski, as DA for Sheboygan Cnty., WI, 2025 WI 32 (Wis. 2025). “It says that the legislature intended to create a “substitute” for the “near-total ban on abortion” in § 940.”
— Wis. Stat. § 940.04(2)(a) — 4 cases
State v. Black, 526 N.W.2d 132 (Wis. 1994). “In case the death of the mother is thereby produced, it is unnecessary to prove that the fetus was alive when the act so causing her death was committed. Subsection 940.04(5), Stats.”
State Ex Rel. Angela M.W. v. Kruzicki, 561 N.W.2d 729 (Wis. 1997). “" Wis. Stat. § 940.04 (2)(a). As we noted in that case, "the words of the statute could hardly be clearer.”
State Ex Rel. Angela M.W. v. Kruzicki, 541 N.W.2d 482 (Wis. Ct. App. 1995). “He was charged with feticide pursuant to § 940.04(2)(a), STATS., which makes it illegal for any person, other than the mother, to intentionally destroy the life of an unborn child.”
Josh Kaul v. Joel Urmanski, as DA for Sheboygan Cnty., WI, 2025 WI 32 (Wis. 2025). “It says that the legislature intended to create a “substitute” for the “near-total ban on abortion” in § 940.”
— Wis. Stat. § 940.04(2)(b) — 1 case
State v. Black, 526 N.W.2d 132 (Wis. 1994). “In case the death of the mother is thereby produced, it is unnecessary to prove that the fetus was alive when the act so causing her death was committed. Subsection 940.04(5), Stats.”
— Wis. Stat. § 940.04(3) — 1 case
Josh Kaul v. Joel Urmanski, as DA for Sheboygan Cnty., WI, 2025 WI 32 (Wis. 2025). “It says that the legislature intended to create a “substitute” for the “near-total ban on abortion” in § 940.”
— Wis. Stat. § 940.04(5) — 5 cases
State v. Black, 526 N.W.2d 132 (Wis. 1994). “In case the death of the mother is thereby produced, it is unnecessary to prove that the fetus was alive when the act so causing her death was committed. Subsection 940.04(5), Stats.”
Kennan v. Warren, 328 F. Supp. 525 (W.D. Wis. 1971). “' Kennan and his staff from activity relating to the performance of other than “therapeutic” abortions as defined in Section 940.04 (5), Wis.Stat.; and (3) a written warning by the Medical Examining Board of the State of Wisconsin, addressed to Dr.”
Babbitz v. McCann, 310 F. Supp. 293 (E.D. Wis. 1970). “He seeks an injunction restraining the defendants from enforcing a part of Wis.Stat. § 940.04 and a judgment declaring it unconstitutional.”
Kennan v. Nichol, 326 F. Supp. 613 (W.D. Wis. 1971). “Plaintiffs attack Sections 940.04(1) and (5) of the Wisconsin Statutes, contending that they violate the Constitution of the United States.”
Josh Kaul v. Joel Urmanski, as DA for Sheboygan Cnty., WI, 2025 WI 32 (Wis. 2025). “It says that the legislature intended to create a “substitute” for the “near-total ban on abortion” in § 940.”
— Wis. Stat. § 940.04(6) — 1 case
Josh Kaul v. Joel Urmanski, as DA for Sheboygan Cnty., WI, 2025 WI 32 (Wis. 2025). “It says that the legislature intended to create a “substitute” for the “near-total ban on abortion” in § 940.”
— Wis. Stat. § 940.04(JL) — 1 case
Kennan v. Warren, 328 F. Supp. 525 (W.D. Wis. 1971). “' Kennan and his staff from activity relating to the performance of other than “therapeutic” abortions as defined in Section 940.04 (5), Wis.Stat.; and (3) a written warning by the Medical Examining Board of the State of Wisconsin, addressed to Dr.”
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