(USNewsMag.com) – Following the Arizona Supreme Court upholding the 1864 provision of a near-total ban on abortion, there is talk about similar laws being used to achieve a national abortion ban.
The 160-year-old provision criminalizes all abortion except to save the mother’s life, even “any medicinal substances,” and provides no exceptions for incest or rape. The law, which bans the procedure in the first few weeks, also calls for abortion providers to face up to five years in prison.
Until the April ruling, abortion was legal through 15 weeks of pregnancy in Arizona.
Though many states repealed such laws after the 1973 Roe v. Wade Supreme Court ruling, these long-dormant laws are still on the books in about a dozen states, including Arizona. The laws were known as “trigger laws” because they would take effect if Roe v. Wade was overturned.
Since the overturning of Roe v. Wade in 2022, supporters and opponents of abortion in Arizona have been fighting in court about whether or not the state could enforce the 1864 law. While the Arizona Supreme Court upheld the 1864 law, other states have repealed zombie laws, with some laws still facing court challenges. A 1931 Michigan law that would have criminalized abortion, except when the mother’s life was at risk, was ruled unconstitutional by a Michigan judge and formally repealed in a 2023 statute. In Wisconsin, an 1849 abortion ban is the center of a lawsuit expected to be decided by the state’s supreme court.
A senior policy counsel at the American Civil Liberties Union, Jessica Arons, said the Arizona ruling is an “example of a century-old zombie law coming back to life.” Many have criticized the law as draconian, saying that it can’t be relevant as it predates even Arizona’s statehood and women’s right to vote.
There is another 19th-century law, the Comstock Act, that could also have an impact on abortion rights nationwide. Originally passed in 1873, the Comstock Act could have implications for the mailing of the abortion pill mifepristone, as the 1873 law prohibited mailing any “instrument, substance, drug, medicine, or thing” that could be used for abortion and contraceptives.
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