Criminal Abortion Law in a Post-Roe World

“These laws are sometimes referred to as zombie laws, as they are not quite alive (they are not currently enforceable), but not quite dead, either (they could become enforceable again in the future).”

B. Zombie Laws: State Criminal Abortion Laws Passed Pre-Roe May Re-Emerge if
Roe is Overturned or Modified

In the absence of federal abortion laws, States have complete control over abortion laws.
Powers that are not delegated to the federal government are reserved to the States. These
plenary powers allow states to pass laws regulating public health and safety; abortion laws
presumably fall under this broad banner. At the time Roe was decided, abortion was criminalized
in the vast majority of states.99 In 1970, New York was the first state to legalize abortion.
Between 1970 and the Roe decision in 1973, Hawaii, Washington, and Alaska also legalized

Reaching a Compromised Solution to an Ongoing Debate: Ethics of Abortion

(religious perspective)

Sacred Heart University >>

My body, whose choice?

(physician’s perspective)

PMC PubMed Central >>

Roe made many of the remaining criminal laws unconstitutional, but this does not mean the laws disappeared completely; rather, they just went dormant, waiting for a critical moment in history—such as the one we are currently in—to rear their heads again. If a law is found unconstitutional, it is not erased from the statute books. A state can choose to repeal it, but it is not required to do so. If it chooses not to, the law is just not enforced. The federal judiciary has no authority to alter or annul a statute; the power of judicial review is limited. The possibility that a case which made a statute unenforceable (in the abortion context, Roe) could be overturned, allowing the executive to resume enforcement. In other words, a ruling that a law is unconstitutional is nothing more than a “judicially imposed non-enforcement policy that lasts only as long as the courts adhere to the constitutional objections that persuaded them to thwart the statute’s enforcement.”

These laws are sometimes referred to as zombie laws, as they are not quite alive (they are not currently enforceable), but not quite dead, either (they could become enforceable again in the future). Zombie laws arise in three ways: (1) when the Supreme Court invalidates a similar law from a different jurisdiction; (2) when a court invalidates a State’s law and enjoins the State’s officials from enforcing it; and (3) when the law has similar constitutional defects to a law that was deemed unconstitutional by a court. This means that all the laws the Supreme Court held to be invalid in Roe and its progeny can potentially be a zombie law, unless the legislature takes affirmative action to repeal them. Criminal abortion laws that were not directly challenged are also zombie laws if they are similar to the ones the Court struck down. The legislature can repeal a zombie law by passing a new law, assuming it can get one passed through both houses. After a Supreme Court decision in Webster v. Reproductive Health Services, Louisiana officials claimed that Roe had effectively been overturned and sought to enforce an old Louisiana law criminalizing abortion which had been found unconstitutional under Roe. The Court avoided the revival issue and found that the statute had been implicitly repealed. After the criminal abortion statute was enjoined, the Louisiana legislature passed a series of statutes regulating abortion.

One may ask: does it really matter if zombie laws may become enforceable again post -Roe? After all, there are other ways states can criminalize abortions. Without the constitutional restraints imposed by Roe, states would be free to pass regulations and even bans on abortion. Post-Roe, 12 states have passed trigger laws that are set to ban abortions completely upon the fall of Roe. However, whether zombie laws re-emerge is still important in the abortion context because federal courts may lack authority to confer immunity pendente lite if their decisions are overturned. Some attorneys in conservative states may argue that overruling Roe exposes women and providers to penalties for abortions that were performed while the laws were enjoined. There are also democratic concerns associated with enforcing zombie laws that should be considered. Some scholars argue that statutes that were found unconstitutional should not be revived (in other words, zombie laws shouldn’t be enforced) because the judicial decision that made them unconstitutional appeased the opponents of the law. These opponents think the law is gone for good. Even if they realize the law could be enforced again if the ruling was overturned, they don’t want to waste time and resources on appealing a law that is a nullity. Thus, “[r]evival in such circumstances can produce a result contrary to what the political process would have produced in the absence of the initial judicial decision.

Pre-Roe abortion laws differed greatly by State; some States completely banned abortions, while others allowed abortions in certain circumstances. Today, nine states have zombie laws still on the books: Alabama, Arizona, Arkansas, Michigan, Mississippi, Oklahoma, Texas, West Virginia, and Wisconsin. Massachusetts had a pre-Roe ban on the books until 2018, when it passed the NASTY (Negating Archaic Statutes Targeting Young) Women Act.
Abortion prior to 24-weeks (third trimester) was already legal in Massachusetts under another state statute. Despite this, the Massachusetts legislature passed the NASTY Women Act to get rid of the possibility that the pre-Roe ban could be enforced if Roe is overturned or modified. New Mexico had a zombie law on the books until 2021, when it was repealed by the state legislature. All of the zombie laws criminalize providers, but some of them criminalize other actors as well. BACK <<