Archaic pieces of legislation are coming back to life as the fight over abortion access rages across the country ahead of the 2024 election.
When the Arizona Supreme Court ruled to ban nearly all abortions in the state, it did so by upholding an 1864 law — passed before Arizona was made a state — that made performing abortions a felony.
There are at least five other states that have similar so-called “zombie laws” on the books, which could be used to restrict or ban abortions entirely.
And anti-abortion groups have made the Comstock Act of 1873 a central part of their push to ban mifepristone, a drug used for medical abortions, being sent through the mail.
These long-dormant laws were revived by the Supreme Court’s Dobbs decision in 2022, which overturned a constitutional right to abortion that had stood for almost 50 years.
That ruling was the fruit of a decades-long conservative push to overturn Roe v. Wade, and made possible after former President Trump appointed three new justices to the court.
However, the zombie laws have become a political liability for Republicans, who are backing away from hardline abortion positions that are widely unpopular with voters.
According to the Guttmacher Institute, Alabama, Arkansas, Mississippi, Texas and West Virginia all have total or near-total abortion bans that were passed several generations ago. Four of these bans were passed in the 1800s, with Texas’s ban being passed in 1925.
All five of these states have banned all abortions with limited exceptions since the Dobbs decision.
Common timing no coincidence
The various zombie laws stem from roughly the same few decades. That’s no coincidence, according to Maya Manian, faculty director of the health law and policy program at American University Washington College of Law.
The hardline abortion laws sprang up in the 19th century during a push to gain control over women’s reproductive health, she said.
“There were different forces at play in the period of time and some of it was actually physicians’ groups, organized medicine [who] were trying to professionalize themselves to wrest control of reproductive health care away from lay midwives,” said Manian.
Outside of medicine, conservative activists like Anthony Comstock, who drafted the Comstock Act, sought to restrict abortion on moral grounds.
According to Manian, this led to “different groups sort of working together to criminalize actions that were not criminalized, actually, earlier in American history.”
“Prior to that mid-19th century period, abortion before a quickening was lawful, and women accessed abortion care, you know, through midwives all the time,” she added.
According to Thomas Jipping, senior legal fellow in the Center for Legal and Judicial Studies at the Heritage Foundation, the age of a statute has no bearing on whether it can be still considered law, even if it’s long been dormant.
“A court is not going to say, ‘This statute is old, so we think it’s invalid or something.’ There’s no basis for any courts to do that,” he said.
Passed during a ‘democratic deficit’
These laws were also largely passed during a time when only men could vote, a point frequently 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 a vote or an opportunity to speak about whether they should be enacted or what their terms should be,” Reva Siegel, Nicholas deB. Katzenbach Professor of Law at Yale Law School, told The Hill.
“Often, they were enacted for reasons that we would no longer consider constitutionally respect worthy,” she added.
In an academic article Siegel co-authored following the Dobbs decision, she argued these laws came from efforts to enforce women’s roles as wives and mothers first and foremost.
Jipping of the Heritage Foundation also pushed back against the relevance of the makeup of the electorate at the time a law was passed.
“The fact that, you know, the electorate was differently comprised at a certain time … that’s not relevant at all,” said Jipping. “The law that was passed at the time, either it was legitimately passed or it wasn’t. If it was, it’s on the books. Whether it should stay that way is always up to the legislature.”
Democrats in the Arizona legislature sought to repeal the 1864 law last week but Republican lawmakers blocked the attempt.
The U.S. upholds many laws that were enacted several generations ago, but experts like Manian say shifts in the legal and political landscape make these abortion laws particularly antiquated.
“It’s completely backwards-looking, with not taking into account how our own Constitution has changed over time. We then eventually enacted a 14th Amendment to protect equal protection and a 19th Amendment to grant the women’s right to vote,” said Manian.
“But it’s sort of freezing our rights back in a time where the people most impacted by these decisions had no say in the making of the law,” she added.
“You’re just reinforcing a democratic deficit.”
Will zombie laws finally die?
Generally speaking, laws are assumed to be enforceable if they are duly enacted regardless of age. This is considered true unless there is a constitutional objection to the enforcement of the law.
Roe barred these state-level abortion bans from being enforced for nearly half a century. According to Siegel, there hasn’t yet been “many sustained judicial discussions” among legal circles on whether these sorts of laws can simply go back into effect immediately after almost 50 years of dormancy.
Jipping said that question should go to state legislatures, after the Supreme Court decided the federal Constitution doesn’t confer a right to abortion.
“At the end of the day, legislatures are responsible for determining abortion policy in their state. And whether that means sorting out multiple laws, 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) has vowed to not enforce the ban even after the state supreme court’s decision last month.
When it comes to Comstock, however, Siegel notes features of the law that make it distinctive from the 1800s state-level abortion bans.
“Most laws that are on the books are the subject of public conversation if they’re enforced in ways that offend the public. But this one has this distinctive history of the government using the criminal law to prevent public criticism of the law. It’s different than the Arizona law for example,” she said.
According to Siegel, Comstock’s enforcement is “flatly unconstitutional under the First Amendment’s protections of free speech today.” Comstock bars the mailing of “obscene, lewd, lascivious, indecent, filthy or vile” things.
The legally accepted definition of “obscene, lewd, lascivious” has also changed over time. When it was first enacted, this definition could apply to medical textbooks depicting the human body, letters that detailed dating among unmarried people or text that acknowledged the existence of abortions.
