(CN) — In the aftermath of the leaked draft opinion signaling the Supreme Court’s intent to overturn Roe v. Wade, four states are confronting a legal landscape where century-old abortion bans could spring back to life.
Before the Supreme Court delineated the constitutional right to an abortion in the 1973 Roe v. Wade decision, abortion was illegal in more than half of the United States. Fifty years after Roe, eight states still have abortion bans from the pre-ˆ years on the books, according to the Guttmacher Institute, and four of those states have not passed any modern abortion bans.
“Zombie laws,” as such statutes are known, are not uncommon if rarely prosecuted. Among 50 zombie laws compiled in 2020, the website Businessinsider.com notes that trial by combat might technically be legal on a federal level.
The states with never-repealed abortion bans haven’t been able to enforce these statutes for nearly 50 years. If, however, the Supreme Court overturns Roe v. Wade — as the draft opinion leaked by Politico indicates it will — Arizona, Wisconsin, Michigan and West Virginia will have to parse out what abortion laws look like in their states and whether previously dormant all-out bans on abortion crafted in the late 1800s and early 1900s have the power of law.
“If the law is still on the books and has never been repealed, then, presumably, the attorney general should be able to enforce that law, unless there’s some reason that law no longer applies,” Tara Grove, a law professor at the University of Alabama, said in an interview.
Some states have repealed their pre-Roe abortion bans for this very reason in recent years. Vermont repealed its mid-19th century abortion ban in 2014, citing fear that Roe would soon be overturned. Massachusetts did so as well four years later, nixing a 173-year-old abortion ban. But for Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, West Virginia and Wisconsin, these pre-Roe bans are still state law, though four of these states also have modern “trigger laws” banning abortion on the books.
“People haven’t had them on their radar for a long time,” Elizabeth Nash, associate director of state issues at the Guttmacher Institute, said about zombie laws during an interview. “We’ve been talking about states restricting abortion and the series of six-week abortion bans, but the pre-Roe bans are very important and could be devastating for abortion care if they are allowed to go into effect.”
These abortion bans would eliminate access to pregnancy termination, with the only exception being if a pregnant person’s life is in danger.
“Even with those exceptions, that often puts doctors in a really hard position where they have to decide at what point are you close enough to death to give a person an abortion. It’s really taking a health care decision and bringing in legal arguments,” Ashlea Phenicie, strategic communications manager for Planned Parenthood in Michigan, said in an interview.
Both West Virginia and Arizona have trigger laws on the books that would ban abortion after 15-weeks if Roe is overturned, but they also have pre-Roe abortion bans, giving government officials options about which law they may choose to enforce and creating a murky future for abortion providers who don’t know whether abortion access could be severely restricted or entirely eradicated in their state.
“It just feels like there’s a menu of options that could be picked up,” Nash said. “It’s very uncertain for providers. It’s very hard to plan. What do you tell patients? Because you don’t want to schedule appointments if you think that abortion ban is going into effect. If you do that and the ban goes into effect, that patient may not be able to get an appointment elsewhere.”
Local officials in Wisconsin and Michigan, states with Democratic governors and attorneys general, are fighting to prevent their pre-Roe bans from being resurrected.
In Michigan, where a 1931 ban modeled after an 1846 abortion policy could become law, Democratic Governor Gretchen Whitmer filed a lawsuit arguing the ban would violate the state constitution’s due process clause, which provides the right to privacy and equal protection. Whitmer’s suit calls for the state supreme court to take up the case and find that the Michigan Constitution protects the right to access an abortion.
The Michigan law at issue would make providing an abortion a felony and, if the pregnant person dies from an abortion, providers could face manslaughter charges.
“If Roe is overturned, abortion could become illegal in Michigan in nearly any circumstance — including in cases of rape and incest — and deprive Michigan women of the ability to make critical health care decisions for themselves. This is no longer theoretical: it is reality,” Whitmer said in a public statement about the lawsuit.
Several prosecuting attorneys in Michigan have said they would not enforce the ban if the Supreme Court overturns Roe in June, but there are also legal questions about whether Michigan’s law and other zombie laws could be enforceable in the first place.
Barbara McQuade, law professor at the University of Michigan and former U.S. attorney for the Eastern District of Michigan, noted that Michigan updated its state constitution in the 1960s, decades after the state’s abortion ban was updated.
“So when it was written in the 1930s, it wasn’t written with an eye toward complying with that new constitution,” McQuade said.
If states have updated their constitutions in the years since these abortion bans were put on the books, or the laws were never challenged under the state constitution, McQuade said there may be room for lawsuits against them to gain traction.
Similar to other pre-Roe laws, the 1931 Michigan law also talks about “intent to procure a miscarriage” rather than abortion itself, potentially raising questions about whether that terminology applies to all modern definitions of abortion.
“I think there’s some issue as to whether the language of these laws makes them applicable to the procedures that are done today, so that would be one basis for a challenge. The other is that they could still be unconstitutional for different reasons. They could be void for vagueness, for example, because of the language that was used at the time. It may be that they no longer match up with the reality [of abortion],” McQuade said.
Citizens in Michigan have also started a petition drive to explicitly add abortion protections to the state constitution, and Planned Parenthood of Michigan filed a lawsuit similar to Whitmer’s filing, asking for the 1931 ban to be overturned.
“Part of the reason we filed the lawsuit was in the hopes that we could have some clarity before the Supreme Court decision,” said Phenicie, the spokesperson for Planned Parenthood in the state. “We hope that it will be resolved before but we don’t know for sure. If Roe falls and there isn’t a clear decision on Michigan’s 1931 abortion ban, abortion access in Michigan will be in disarray. Providers will be unsure whether they could face criminal legal consequences for providing abortion and patients will be unclear on if they can still access abortion. Planned Parenthood follows all state and federal laws so we would be in the difficult position if the law was not clear.”
Abortion providers in Wisconsin have similar concerns about the lack of clarity regarding abortion access in a post-Roe world. Wisconsin has a 1849 law on the books that bans abortion except for an abortion needed to save a pregnant person’s life.
That ban carries felony charges for providers who can face up to six years in prison and a $10,000 fine.
Wisconsin also has a ban on abortions after 20 weeks of pregnancy, bringing up questions about what would take precedent as enforceable law in the absence of Roe.
“What you have now is sort of this tangle of various abortion-related provisions, and there’s a question about how they operate together,” Miriam Seifter, assistant professor of law at the University of Wisconsin, said in an interview.
If Roe is overturned, litigation will have to parse out what abortion law looks like in Wisconsin. State lawmakers could pass new regulations, but the possibility of an all-out ban already has Planned Parenthood of Wisconsin saying they would stop all abortion care in the state immediately.
Attorney General Josh Kaul said he will not prosecute violations of the law if it takes effect, but that wouldn’t stop law enforcement officials at the county level from prosecuting abortion providers.
Lack of immediate clarity on the law for abortion providers and people seeking abortions is becoming a primary issue for states who don’t know what will become of their pre-Roe bans, as well as states where trigger laws are enjoined by courts.
“I imagine this will be the next battleground. States that have state laws, either zombie laws or trigger laws, this might be the next round of litigation: lawsuits within states challenging state laws under state constitutions. And they could end up with very different results,” McQuade said.
from Courthouse News
