Abortion has become or will soon become illegal in more than a dozen states whose legislatures passed so-called trigger laws allowing bans shortly after the Supreme Court’s ruling overturned Rowe v. Wade on Friday.
But abortion rights are also threatened in other countries due to older bans criminalizing abortion, some of which were written before the Civil War. Although the bans were considered dormant after Roe’s decision in 1973, they were never lifted by state legislatures – and could now be enforced. Two of the states, Michigan and Wisconsin, have Democratic governors who support access to abortion and polls, which show that a majority of residents do the same. But their Republican-controlled legislatures showed no interest in repealing the old laws.
“Every state 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 U.S. Sen. Kelda Royce, a Democrat from Wisconsin. “This makes things very difficult for healthcare providers. This triggers a whole host of terrible circumstances. “
The sudden importance of laws that were written before women had the right to vote has led lawmakers, activists and abortion providers to struggle to understand the consequences. In Wisconsin, clinics in Milwaukee and Madison had already paused the appointment of abortion procedures next week pending a Supreme Court ruling; after his decision came on Friday morning, all state clinics stopped providing abortions altogether.
Ishmael Ozan, Dane County Attorney’s Office, signaled on Friday that he would not enforce Wisconsin’s law criminalizing abortion, suggesting that a situation could develop in which abortions are prosecuted differently from county to county.
According to the Gutmacher Institute, which supports abortion rights, eight states still have abortion bans on books prior to Rowe vs. Wade, but some have more recent bans that are likely to take precedence. In recent years, states, including New Mexico, Vermont and Massachusetts, have lifted old bans.
In Michigan, where a 1931 law prohibits abortion, the battle is already taking place in the courts. Democrat Gretchen Whitmer filed a lawsuit in April, asking the Michigan Supreme Court to decide whether the state constitution protects the right to abortion. A Michigan judge issued an order in May suspending the ban, at least temporarily, until a separate trial is resolved.
On Friday, Ms. Whitmer called the 1931 law “obsolete,” noting that it did not provide for exceptions to rape or incest. “The 1931 law will punish women and deprive them of the right to make decisions about their own bodies,” she said in a statement.
Ms. Whitmer has vowed to veto legislation that would limit abortion. The Michigan legislature has a Republican majority, but not large enough to lift the veto.
In West Virginia, there was also a ban before Roe, but experts said it was unclear whether this or newer state laws that placed fewer restrictions on abortion would take effect. State Attorney Patrick Morrissey said in a statement Friday that he would soon “provide a legal opinion to the legislature on how it should proceed to save the lives of as many babies as possible, as humanely and legally as possible.”
Arizona, Alabama and North Carolina also have older abortion laws in the books, but more recent restrictions passed in those states may take precedence, such as a total abortion ban that became law in Alabama in 2019, but has been replaced by Roe so far.
In Wisconsin, both sides are preparing for lawsuits and political battles over whether the abortion ban, which has been inapplicable since Rowe and Wade made abortion legal in 1973, will lead to prosecution.
“The future of this old law will be determined in our state courts and our state political system,” said Mike Murray, vice president of government and foreign affairs at Wisconsin’s Planned Parenthood. “On a practical level, there will be litigation requiring clarification from our state courts as to whether the 1849 law is applicable or not.
Updated
June 25, 2022, 12:09 pm ET
Gracie Skogman, Wisconsin’s legislative director of the Right to Life, said she hoped the 1849 law would be “applicable and save lives here in Wisconsin, but we also expect legal challenges.” On Friday, the organization said that “Wisconsin is in a strong position to protect prenatal life because of our status before Rowe.”
Under the Wisconsin ban, doctors who perform abortions can be found guilty of a crime. It includes exceptions for abortion, which is necessary to save the mother’s life, but does not make exceptions for cases of rape or incest.
Laws banning abortion in the 19th century are usually the result of efforts to regulate how medicine is practiced, which drugs can be distributed, and who supplies drugs that can cause abortion, historians say. Laws prohibit abortion only after “acceleration” – a time around mid-pregnancy when a woman can feel the movement of the fetus in the womb.
James Moore, a professor at the University of Oregon whose book Abortion in America Describes the History of Abortion in the United States, said 19th-century laws banning abortion were passed not for political reasons but because of pressure from elite doctors who were concerned that people who call themselves doctors had abortions without training.
“It’s very difficult for Americans to remember the fact that abortion was simply not a public problem in the 19th century,” he said. “It was not discussed publicly, it was not political, it was not politicized.
After the states passed abortion bans, he said: “It seems that the practice of abortion continues exactly as it has always been.”
“The same number of pregnancies as a percentage continue to be terminated,” he continued. “Prosecutors almost never prosecute under these laws because jurors would not convict.”
Lauren McIver Thompson, an assistant professor of history and interdisciplinary research at Keneso State University in Georgia who studies the history of abortion, said recent laws banning abortion were far more restrictive than those passed more than a century ago.
“In general, many of the laws passed in the 19th century were more lenient and often did not punish women,” she said. “That is changing fast.”
Past attempts 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 pressure to repeal it.
“Until recently, I hadn’t heard much about the ban,” said Jenny Higgins, a professor of gender and women’s research and obstetrics and gynecology at the University of Wisconsin-Madison School of Medicine and Public Health. “People really didn’t believe Roe’s overthrow was possible or tasty until recently.”
Wisconsin residents have said in recent polls that they support maintaining the legality of abortion. In a recent survey by Marquette Law School, 58 percent of state residents said abortion should be legal in all or most cases.
Last week, Gov. Tony Evers convened a special session in the legislature to put pressure on lawmakers to lift the abortion ban. A ring of protesters in pink shirts gathered at the Statehouse in Madison, and their chants ricocheted under the dome of the Capitol building.
But Republicans, who have a majority in the U.S. Senate, ended the session almost as quickly as it began, without a vote or discussion. Robin Voss, the President of the Assembly, wrote on Twitter on Friday that “the protection of the lives of unborn children should not be in dispute.”
Mr Evers, who is running for re-election in November, condemned Republicans after the session, saying they had threatened access to health care.
“Republicans’ refusal to act will have real and severe consequences for all of us and the people we care about most, who may see that their ability to make their own reproductive health decisions will be deprived of them.” said Mr Evers in a statement.
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