(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The states with never-repealed abortion bans haven't been able to enforce these statutes for nearly 50 years.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"If the law is still on the books and has never been repealed, then, presumably, the attorney general should be able to enforce that law, unless there's some reason that law no longer applies," Tara Grove, a law professor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Some states have repealed their pre-Roe abortion bans for this very reason in recent years. Vermont repealed its mid-19th century abortion ban in 2014, citing fear that Roe would soon be overturned.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.”
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