Arizona Upholds “Zombie” Abortion Law

24 April 2024

Apr 24, 2024

From the Brennan Center for Justice at NYU Law:

Earlier this month, the Arizona Supreme Court ruled that an 1864 law that bans virtually all abortions in the state is still operative. The decision upended state and national politics in a key swing state and brought new attention to so-called zombie laws — long-unenforced statutes that remain on the books.
Wisconsin, for example, has a similar law dating back to 1849 that has been challenged in court by the state’s attorney general. Centuries-old laws are often written in ways that don’t fit easily into modern categories, and a trial court held that the Wisconsin law did not apply to abortions but was rather limited to instances when a pregnant person was attacked. The Wisconsin Supreme Court, which has a new liberal majority after last year’s supreme court election, is considering whether to take up an appeal, as well as a separate action by Planned Parenthood seeking to establish a state constitutional right to abortion.
On the federal front, Jonathan F. Mitchell, the lawyer behind Texas’s S.B. 8 abortion law, has argued that the 1873 Comstock Act offers a path to criminalizing the shipment of pills and other materials used for abortions. (Notably, while the mifepristone case currently before the U.S. Supreme Court is unlikely to turn on the Comstock Act, Justices Clarence Thomas and Samuel Alito both referred to it during the oral argument.)
These zombie laws are suddenly live issues because of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization that Roe v. Wade was wrongly decided. The Court declared in Dobbs that the authority to regulate abortions “must be returned to the people and their elected representatives.” But Arizona’s ruling and the potential enforcement of other zombie laws raise the question about which “people” actually get to make these decisions — today’s citizens or those from centuries past.
They also highlight an often underappreciated argument for the importance of respecting precedent: generations of Americans expended no political energy to remove inoperative abortion laws from the books, relying on the fact that Roe set a federal floor for abortion rights. Now Dobbs threatens to resurrect those laws, often in political environments that can make repeal an uphill climb.
These questions loom large with a Supreme Court supermajority that has shown little regard for precedent, some of whose justices have expressed skepticism about other fundamental rights. Both sodomy laws and same-sex marriage bans remain on the books in several states, for example. More here.

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