Abortion has become or will soon become illegal in more than a dozen states whose legislatures had passed so-called trigger laws, authorizing bans shortly after the Supreme Court’s decision overturning Roe v. Wade Friday.
But the right to abortion is also under threat in other states due to old bans criminalizing abortion, some of which were written before the civil war. Although the bans were considered dormant after the Roe decision in 1973, they were never repealed by state legislatures – and could now be enforced. Two of the states, Michigan and Wisconsin, have Democratic governors who favor abortion access and polls that show the majority of residents do as well. But their Republican-controlled legislatures have shown no interest in repealing old laws.
“Every district attorney in the state will be empowered to investigate miscarriages to test the limits of the law and see if they can put doctors in jail,” said Senator Kelda Roys, Democrat of Wisconsin. “It makes things very difficult for health care providers. This triggers a whole series of terrible circumstances.
The sudden prominence of laws that were written before women had the right to vote has lawmakers, activists and abortion providers scrambling to understand the implications. In Wisconsin, clinics in Milwaukee and Madison had already suspended appointments for abortion procedures next week in anticipation of the Supreme Court ruling; after her decision was made Friday morning, all clinics in the state stopped offering abortions altogether.
Ismael Ozanne, the Dane County District Attorney, signaled Friday that he would not enforce Wisconsin law that criminalizes abortion, suggesting a patchwork situation could develop in which abortion is prosecuted differently from one county to another.
According to the Guttmacher Institute, which supports abortion rights, eight states still outlaw abortion in books prior to Roe v. Wade, but some have more recent bans that would most likely take precedence. In recent years, states like New Mexico, Vermont, and Massachusetts have removed old bans.
In Michigan, where a 1931 law prohibits abortion, the battle is already being played out in court. Governor Gretchen Whitmer, a Democrat, filed a lawsuit in April asking the Michigan Supreme Court to determine whether the state Constitution protects the right to abortion. A Michigan judge issued an injunction in May that prevents the ban from being enforced, at least temporarily, until a separate lawsuit is resolved.
On Friday, Ms Whitmer called the 1931 law “outdated”, noting that it does not provide exceptions for rape or incest. “The 1931 law would punish women and deprive them of their right to make decisions about their own bodies,” she said in a statement.
Ms Whitmer has vowed to veto legislation that would restrict abortion. The Michigan legislature has a Republican majority but not large enough to be likely to override a veto.
There is also a pre-Roe ban in West Virginia, but experts said it’s unclear whether that law or new state laws that place fewer restrictions on abortion will go into effect. State Attorney General Patrick Morrisey said in a statement Friday that he “will soon provide legal advice to the Legislative Assembly on how it should proceed to save as many baby lives as humanly possible. and legally possible”.
Arizona, Alabama, and North Carolina also have older abortion laws, but newer restrictions passed in those states might take precedence, such as a total abortion ban that became law in Alabama. in 2019 but has been replaced by Roe until now.
In Wisconsin, both sides are bracing for lawsuits and political battles over whether the abortion ban, which has been unenforceable since Roe v. Wade legalized abortion in 1973, will lead to prosecution.
“The future of this ancient law will be determined by our state courts and our state political system,” said Mike Murray, vice president of government and external affairs for Planned Parenthood of Wisconsin. “On a practical level, there will be litigation seeking clarification from our state courts as to whether or not the 1849 Act is enforceable.”
Gracie Skogman, legislative director of Wisconsin Right to Life, said she hopes the 1849 law “is enforceable and saves lives here in Wisconsin, but we also expect there will be legal challenges.” . On Friday, the organization said “Wisconsin is in a strong position to defend unborn life because of our pre-Roe status.”
Under the Wisconsin ban, doctors who perform abortions can be convicted of a felony. It includes exceptions for an abortion that is necessary to save the life of the mother, but does not make exceptions for cases of rape or incest.
Laws banning abortion in the 19th century were generally the result of an effort to regulate the practice of medicine, what drugs could be dispensed, and who provided drugs that could induce abortion, historians have said. Laws tended to prohibit abortion only after an “acceleration” – a point around the middle of pregnancy when a woman can feel a fetus moving in the womb.
James Mohr, a professor at the University of Oregon whose book “Abortion in America” details the history of abortion in the United States, said 19th century laws banning abortion did not were not adopted for political reasons, but because of pressure from elite doctors, who feared that people who called themselves doctors were performing untrained abortions.
“It’s very hard for Americans to come to terms with the idea that abortion just wasn’t a public issue in the 19th century,” he said. “It wasn’t discussed in public, it wasn’t political, it wasn’t politicized.”
After states passed abortion bans, he said, “It would appear that the practice of abortion has continued much as it always has.”
“The same percentage number of pregnancies continued to be terminated,” he continued. “Prosecutors almost never prosecuted under these laws because juries wouldn’t convict.”
Lauren MacIvor Thompson, an assistant professor of history and interdisciplinary studies at Kennesaw State University in Georgia who studies the history of abortion, said recent laws banning abortion have been much more restrictive. than those adopted more than a century ago.
“On the whole, many laws passed in the 19th century were more lenient and often did not punish the woman,” she said. “It is changing rapidly.”
Past efforts to repeal the 1849 law in Wisconsin failed, even when the Democratic Party controlled both the governor’s office and the legislature, and there was little public push to overturn it.
“I hadn’t heard much about the ban until recently,” said Jenny Higgins, professor of gender and women’s studies and obstetrics and gynecology at the School of Medicine and Health. public from the University of Wisconsin-Madison. “People didn’t really believe knocking down Roe was possible, or acceptable, until recently.”
Wisconsin residents have indicated in recent polls that they support keeping abortion legal. In a recent poll conducted by Marquette Law School, 58% of state residents said abortion should be legal in all or most cases.
Last week, Governor Tony Evers called a special session of the Legislative Assembly to pressure lawmakers to repeal the abortion ban. A circle of protesters in pink shirts gathered at the Statehouse in Madison, their chants ricocheting under the dome of the Capitol building.
But Republicans, who hold a majority in the state Senate, ended the session almost as quickly as it began, without a vote or discussion. Robin Vos, the Speaker of the Assembly, said on Twitter on Friday that “saving the lives of unborn children should not be controversial”.
Mr. Evers, who is seeking re-election in November, condemned Republican lawmakers after the session, saying they had compromised access to health care.
“Republicans’ failure to act will have real and serious consequences for all of us and the people we care about most who may have their ability to make their own reproductive health decisions taken away from them,” said Mr. Evers in a statement.