At least five states that banned abortion before 1973 were left in legal limbo after the U.S. Supreme Court’s Friday decision overturning Roe v Wade.
Many states will continue to permit abortions, while others have in place so-called “trigger laws” that automatically banned or restricted the practice as soon as the landmark case was overturned. But a handful may be poised to simply revert to laws that were in place 50 or more years ago.
The issue becomes particularly thorny in states with Democratic control over prosecuting, such as Wisconsin and Michigan, where attorneys general have already vowed not prosecute abortion cases. However, pro-life executives in red states could have an avenue to ban abortion through pre-Roe restrictions.
Alabama, one of the states where abortion could become illegal, has a 1951 abortion ban that officials might attempt to enforce, as well as a more recent 2019 law that also effectively banned all abortion with the exception for women with “serious health risk.” The 2019 law was blocked by a court, but this could now be reinstated with the disbanding of Roe.
Attorney General Steve Marshall (R-AL) said Friday that “Alabama laws that prohibit abortion and that have not been enjoined by a court are in full effect. For those laws that have been halted by courts, the State will immediately file motions to dissolve those injunctions.”
Marshall added, “Any abortionist or abortion clinic operating in the State of Alabama in violation of Alabama law should immediately cease and desist operations.”
Another state with a pre-Roe ban is Arizona, which had a law passed in 1901 effectively banning all abortions. Roe left this law unenforced, and pro-life lawmakers could now attempt to implement this law. Governor Doug Ducey (R-AZ) has previously indicated that the state’s more recent 15-week ban would take precedent, but that law “specifically says it does not overrule the total abortion ban,” the Associated Press reported.
In Michigan, the battle over the state’s response to Roe will be contested as the state does have a 1931 ban on abortion, which was blocked by a court, but is under appeal and expected to be heard by a higher court.
“I will not prosecute women, girls, or their doctors for seeking or providing abortion services. Nor will my staff seek licensure discipline against medical professionals who safely perform these procedures,” Attorney General Dana Nessel (D-MI) said.
Though Nessel admitted she cannot prevent other attorneys from prosecuting if the injunction against the law is blocked, some county attorneys have already followed suit, saying they will not prosecute abortion cases.
If elected in November, Republican rival Matthew DePerno said that he would enforce the abortion law “immediately” upon taking office.
Wisconsin is in a similar situation with Attorney General Josh Kaul (D-WI) saying before the decision that he would not enforce the state’s 1849 abortion ban if Roe were overturned, though local officials could.
Eric Toney, the attorney general of Fond du Lac County and a Republican seeking to challenge Kaul in November, has said he would enforce the law as attorney general and that he would start enforcing the abortion decision within his county due to the Supreme Court’s decision.
In West Virginia, pro-life legislators could turn to an 1848 abortion ban or a recently passed amendment to the state constitution saying there was no right to abortion in order to outlaw abortion.
It is unclear yet how Attorney General Patrick Morrisey will proceed, but he did release a statement praising the decision.
“Our Constitution should never have been interpreted in a way that lets it override the states’ compelling interest to protect innocent life,” he said. “In the next few days, I will be providing a legal opinion to the Legislature about how it should proceed to save as many babies’ lives as humanly and legally possible.”
In North Carolina, there was a pre-Roe abortion ban, but Politico noted that this law was later “modified.” It seems like there could be a way forward through court action, though the state’s governor and attorney general are Democrats.
Other states with pre-Roe abortion laws that also have trigger laws banning abortion include Mississippi, Oklahoma, Arkansas, and Texas. The trigger laws in these states already ban abortion rendering the pre-Roe laws effectively unnecessary.