How century-old zombie abortion projects are influencing the fight in 2024

Archaic pieces of legislation are coming back to life as the fight over abortion access intensifies across the country ahead of the 2024 elections.

When the Arizona Supreme Court decided to ban almost all abortions in the state, it did so by upholding an 1864 law – passed before Arizona became a state – that made performing abortions a crime.

There are at least five other states that have similar so-called “zombie laws” in place, which could be used to restrict or outright ban abortion.

And anti-abortion groups made the Comstock Act of 1873 a central part of their effort to ban the mailing of mifepristone, a drug used for medical abortions.

These long-dormant laws were revived by the Supreme Court’s 2022 Dobbs decision, which overturned the constitutional right to abortion that had been in place for nearly 50 years.

This decision was the fruit of a decades-long conservative effort to overturn Roe v. Wade. Wade, and became possible after former President Trump appointed three new justices to the court.

However, zombie laws have become a political liability for Republicans, who are moving away from hard-line positions on abortion that are widely unpopular with voters.

According to the Guttmacher Institute, Alabama, Arkansas, Mississippi, Texas and West Virginia have total or near-total abortion bans that were passed generations ago. Four of these bans were passed in the 1800s, with the Texas ban being passed in 1925.

All five states have banned all abortions with limited exceptions since the Dobbs decision.

Common moment is not a coincidence

The various zombie laws date back to roughly the same decades. That’s no coincidence, according to Maya Manian, director of the health law and policy program at American University Washington College of Law.

Harsh abortion laws emerged in the 19th century during an effort to gain control over women’s reproductive health, she said.

“There were different forces at play in that period and some of them were actually groups of doctors, organized medicine [who] they were trying to professionalize to wrest control of reproductive health care from lay midwives,” Manian said.

Outside of medicine, conservative activists like Anthony Comstock, who wrote the Comstock Act, sought to restrict abortion on moral grounds.

According to Manian, this led to “different groups working together to criminalize actions that were not criminalized, actually, earlier in American history.”

“Before that period in the mid-19th century, abortion before a quickening was legal, and women had access to abortion care, you know, through midwives all the time,” she added.

According to Thomas Jipping, a senior fellow at the Heritage Foundation’s Center for Legal and Judicial Studies, the age of a statute has no bearing on whether it can still be considered law, even if it has long been dormant.

“A court isn’t going to say, ‘This law is old, so we think it’s invalid or something.’ There is no basis for any court to do this,” he said.

Passed during a ‘democratic deficit’

These laws were also widely passed at a time when only men could vote, a point often raised by their opponents.

“Zombie laws are restrictions, in this case, on access to abortion that were enacted many generations ago, and often before women actually had the right to vote or the opportunity to speak out about whether they should be enacted or what their terms should be.” , Reva Siegel, Nicholas de B. Katzenbach Professor of Law at Yale Law School, told The Hill.

“Often, they were enacted for reasons that we would no longer consider constitutionally worthy of respect,” she added.

In an academic article authored by Siegel after the Dobbs decision, she argued that these laws came from efforts to fulfill women’s roles as wives and mothers in the first place.

Jipping, of the Heritage Foundation, also objected to the relevance of the composition of the electorate at the time the law was passed.

“The fact that, you know, the electorate was made up differently at a given time… that’s not at all relevant,” Jipping said. “The law that was approved at the time was either legitimately approved or it wasn’t. If it was, it’s in the books. Whether it should continue like this always depends on the legislator.”

Democrats in the Arizona Legislature tried to repeal the 1864 law last week, but Republican lawmakers blocked the effort.

The U.S. upholds many laws that were enacted generations ago, but experts like Manian say changes in the legal and political landscape make these abortion laws particularly antiquated.

“It is a completely retrograde view, without taking into account how our Constitution itself has changed over time. We then ended up enacting a 14th Amendment to protect equal protection and a 19th Amendment to guarantee women the right to vote,” said Manian.

“But it is a kind of freeze on our rights at a time when the people most affected by these decisions had no say in the drafting of the law,” she added.

“You’re just reinforcing a democratic deficit.”

Will zombie laws finally die?

Generally speaking, laws are presumed to be enforceable if they are properly enacted, regardless of age. This is considered true unless there is a constitutional objection to the application of the law.

Roe prevented these state abortion bans from being enforced for nearly half a century. According to Siegel, there hasn’t yet been “a lot of sustained legal discussion” among legal circles about whether these types of laws can simply go back into effect immediately after nearly 50 years of dormancy.

Jipping said this issue should be taken to state legislatures after the Supreme Court ruled that the federal Constitution does not provide the right to abortion.

“Ultimately, legislatures are responsible for determining abortion policy in their state. And whether that means resolving several laws, or whether it means deciding to once again enforce a law that has been dormant for a while, at the end of the day that’s what legislatures are for.”

Arizona Attorney General Kris Mayes (D) promised not to enforce the ban even after the state supreme court ruling last month.

However, when it comes to Comstock, Siegel notes features of the law that differentiate it from 19th-century state abortion bans.

“Most of the laws that are in force are the subject of public debate if they are applied in a way that offends the public. But this one has this distinct history of the government using criminal law to avoid public criticism of the law. It’s different from Arizona law, for example,” she said.

According to Siegel, Comstock’s application is “wholly unconstitutional under the free speech protections of the First Amendment today.” Comstock prohibits sending things that are “lewd, lewd, lascivious, indecent, filthy, or vile.”

The legally accepted definition of “obscene, lewd, lascivious” has also changed over time. When it was first promulgated, this definition could apply to medical books that depicted the human body, letters that detailed dating between unmarried people, or texts that acknowledged the existence of abortions.