Abortion laws from 1800s became legal issue after Supreme Court ruling
A 158-year-old abortion ban became a present-day fact of life in Arizona last week when a state judge ruled it could be enforced in the wake of the Supreme Court overturning constitutional protection of abortion rights in June.
In other states, long-dormant, sometimes century-old abortion restrictions passed by all-male legislatures during a time of limited scientific knowledge are also shaping abortion policy.
Some of those laws, which generally call for imprisonment for providers and don’t allow for abortion even in the first weeks of pregnancy, have influenced the availability of abortion. Some are now in litigation. Others have been superseded by more recent bans.
The bans were invalidated by the Supreme Court’s 1973 Roe v. Wade decision but weren’t repealed and remained on the books in nine states when the court rescinded Roe. Their mere existence has influenced policy and health care access in Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia and Wisconsin.
The ramifications of the old laws are “huge, enormous,” said Jenny Higgins, a University of Wisconsin-Madison professor and director of the school’s Collaborative for Reproductive Equity (CORE).
In Wisconsin, “health care systems are putting their services on ice because they can’t risk having their providers or patients commit felonies,” Higgins told USA TODAY. “It’s amazing that these laws that are this old are suddenly coming back to have an effect.”
Here are some of the decades-old abortion laws shaping the debate on reproductive health care access.
Old law prevails:Arizona’s 1864 law banning nearly all abortions is in effect, judge rules
Historic decision:Supreme Court overturns Roe v. Wade, eliminating constitutional right to abortion
Seeking constitutional protection:Michigan Supreme Court: Abortion amendment must appear on ballot
What is the abortion law in Arizona?
At the request of Arizona’s Republican attorney general, a judge ruled Sept. 23 that the state could enforce an abortion ban passed by the territorial legislature in 1864 and recodified in 1901, years before Arizona became a state in 1912. Abortion providers canceled appointments after the decision.
A separate ban at 15 weeks of pregnancy, signed into law this year, was to take effect the next day, but state Attorney General Mark Brnovich said the stricter decades-old law, which allows no time frame to attain an abortion early in a pregnancy, should take precedence.
“The attorney general is arguing that the old ban trumps everything … but I think there are a lot of people who believe that that doesn’t reflect the legislative consensus that there are exemptions built into the laws at this point,” said Barbara Atwood, law professor emerita at the University of Arizona James E. Rogers College of Law.
Planned Parenthood has since filed a request for the judge to stay her order regarding the pre-Roe ban and the overall decision could be appealed.
The 1800s law calls for two to five years in prison for anyone providing an abortion. As with some of the other older bans, the only exception is the life of the pregnant woman.
Advance planning:Abortion ‘trigger’ bans to take effect in multiple states this week. What do they change?
How is an 1849 ban affecting abortion access in Wisconsin?
The legal status of Wisconsin’s 1849 ban remains murky since a judge hasn’t yet ruled on the Democratic state attorney general’s effort to stop its enforcement. What is clear is that elective abortions stopped in the state after the Supreme Court decision left providers uncertain about whether the 173-year-old law was in effect.
“Even though the actual enforceability of the ban is unclear, the reality of abortion care here is that it is unavailable,” the University of Wisconsin’s Higgins said. “That to me is the most important thing, what actually is happening on the ground.”
Beyond the direct effect on abortion access, the uncertainty caused by the ban is keeping abortion front and center in one of the swing states that will help determine which party controls the U.S. Senate.
“Abortion as an issue is looming large in campaign ads, especially in the governor’s race, but also in the U.S. Senate race,” Higgins said.
What is the old ban’s status in Michigan?
In September, a state judge issued a permanent injunction to keep Michigan’s 1931 ban from taking effect, stopping efforts by some county prosecutors to enforce a law that criminalizes all abortions except in life-saving situations.
Both Michigan’s Democratic governor and attorney general oppose the 91-year-old law, which has lain dormant since the 1973 Roe ruling.
The judge’s ruling still can be appealed.
In an effort to pre-empt enforcement of the 1931 law and other potential bans, abortion rights advocates are pushing for voters to back a state constitutional amendment protecting reproductive freedom, including abortion, that will be on the fall ballot. Advocates had gained enough signatures to qualify the referendum but needed a court to overturn a move by Republican state canvassers to disqualify the ballot question.
Which law banned abortion in West Virginia?
After Roe was overturned in June, it wasn’t clear whether an 1870 West Virginia abortion ban would take effect. Abortion care stopped temporarily, but it started again after a judge issued a temporary injunction against the ban on July 18.
With the ban’s ultimate fate uncertain, Republican Gov. Jim Justice, asked the state Legislature to “clarify and modernize” the century-old law in a special session in late July.
The House and Senate failed to come to an agreement then, but they returned this month to pass a stringent ban, which has exceptions for medical emergencies and, for limited time frames, rape and incest (eight weeks of pregnancy for adults, 14 for minors, with victims required to report the assault at least 48 hours before the procedure.) Justice signed the bill into law Sept. 16.
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