Abortion has already become illegal or will soon become illegal in more than 12 US states that have passed so-called “trigger laws” that authorized its ban as the Supreme Court ruled on Friday overturning the constitutional guarantee of the procedure. ).
But abortion rights are at risk in other states because of older measures that criminalize the practice, some of them drafted before the American Civil War (1861-1865).
Although these bans were considered dormant following the ruling in Roe v. Wade in 1973 were never repealed by state legislatures — and they can be implemented now. Two of the states in question, Michigan and Wisconsin, have Democratic governors who favor access to abortion, and polls indicate that most of their residents are too. But its Republican-controlled legislatures have shown no interest in repealing the old laws.
“Each district attorney in the state will have the power to potentially investigate miscarriages to test the limits of the law and see if they can put doctors in prison,” said Democratic State Senator Kelda Roys of Wisconsin. “This makes life very difficult for doctors and opens the door to a flood of dire situations.”
The sudden importance of laws written before women had the right to vote is prompting lawmakers, activists and abortion clinics to make an effort to analyze their implications quickly. In Wisconsin, clinics in Milwaukee and Madison had already stopped scheduling abortion procedures for this week, in anticipation of the Supreme Court’s decision. When the decision was announced Friday morning, all clinics in the state stopped performing abortions.
Dane County District Attorney Ismael Ozanne on Friday signaled that he will not implement Wisconsin’s law criminalizing abortion, suggesting that a number of different situations could arise, with abortion being prosecuted differently between a county and another.
According to the Guttmacher Institute, which supports abortion rights, eight states still have abortion bans in place that predate Roe v. Wade, but some have newer rules that are likely to take legal precedence. In recent years, some states, including New Mexico, Vermont and Massachusetts, have lifted old bans.
In Michigan, where a 1931 law prohibits abortion, the dispute is already raging in the courts. Democratic Governor Gretchen Whitmer filed a lawsuit in April asking the state Supreme Court to rule on whether the state constitution protects the right to abortion. A Michigan judge issued an injunction in May that prevents the ban from being implemented, at least temporarily, until a separate lawsuit is decided.
On Friday, Whitmer described the 1931 law as antiquated, noting that it does not provide for exceptions for cases of pregnancy resulting from rape or incest. “The 1931 law wants to punish women and nullify their right to make decisions about their own bodies.”
Whitmer vowed to veto any legislation that would restrict abortion. Michigan’s legislature has a Republican majority, but it’s probably not big enough to override a governor’s veto.
There is a pre-1973 ban in effect in West Virginia, but experts said it was unclear whether it or newer state laws that impose fewer restrictions on abortion will take effect. State Attorney Patrick Morrissey said in a statement that he “soon will give legal advice to the Legislature on how it should proceed to save as many babies’ lives as is humanly and legally possible.”
Arizona, Alabama, and North Carolina also have older abortion laws still in place, but more recent restrictions passed in those states may take precedence, such as Alabama’s 2019 outright abortion ban, which until now was superseded by the 1973 decision. .
In Wisconsin, the two sides are brewing court cases and legal battles to decide whether the abortion ban, which has not been enforced since Roe v. Wade legalized the procedure, will lead to lawsuits.
“The future of this old law will be determined in our state courts and our state political system,” said Mike Murray of Planned Parenthood of Wisconsin. “Concretely, there will be litigation asking for clarification from our courts as to whether or not the 1849 law can be implemented.”
Gracie Skogman, legislative director for Wisconsin Right to Life, said she hopes the 1849 law “can be enforced and save lives here in Wisconsin, but we anticipate it will be challenged.” On Friday the organization said, “Wisconsin is in a strong position to defend pre-birth life, thanks to our status prior to Roe v. Wade.”
Under Wisconsin’s current ban, doctors who perform abortions can be criminally convicted. The measure includes exceptions in the case of an abortion necessary to save the mother’s life, but not for a pregnancy resulting from rape or incest.
Anti-abortion laws passed in the 19th century were often the result of an effort to regulate the practice of medicine, the medicines that could be dispensed and who provided abortifacient drugs, historians said. Laws generally forbade abortion only after the moment, about midway through pregnancy, when a woman can feel the fetus moving inside her uterus.
Lauren MacIvor Thompson is an assistant professor of history and interdisciplinary studies at Kennesaw State University in Georgia, who studies the history of abortion. She said the latest laws banning abortion are much more restrictive than laws passed well over a century ago.
“Many of the laws passed in the 19th century were more lenient and didn’t punish women. This is rapidly changing.”
Previous efforts to repeal Wisconsin’s 1849 law had failed, even as the Democratic Party controlled both state and legislature governments, and there was little public effort to overturn it.
“I hadn’t heard much about the law until recently,” commented Jenny Higgins, professor of gender and women’s studies, gynecology and obstetrics at the University of Madison-Wisconsin School of Medicine and Public Health. “Until recently people didn’t really believe that taking down Roe was possible or palatable.”
In recent opinion polls, Wisconsin voters indicated that they are in favor of keeping abortion legal. In a recent poll by Marquette Law School, 58% of state residents surveyed said abortion should be legal in all or most cases.
Last week, Governor Tony Evers convened a special session of the Legislature to pressure lawmakers to repeal the abortion ban. Protesters in pink T-shirts gathered in a circle at the State Capitol in Madison and shouted slogans.
But Republicans, who form the majority in the state Senate, ended the session shortly after it began, with no voting or debate. Robin Vos, the Assembly’s president, wrote on Twitter that “protecting the rights of unborn children should not generate controversy”.
Evers, who is running for re-election in November, criticized Republican lawmakers after the session, saying they had undermined access to healthcare.
“Refusal by Republicans to act will have concrete and serious consequences for all of us and for the people most important to us, who may be deprived of the ability to make decisions about their own reproductive health,” he said.
