Arizona Highlights Risk of “Zombie” Laws

Earlier this month, the Arizona Supreme Court ruled that an 1864 law that bans virtually all abortions in the state is still operative. The decision upended state and national politics in a key swing state and brought new attention to so-called zombie laws — long-unenforced statutes that remain on the books.

Wisconsin, for example, has a similar law dating back to 1849 that has been challenged in court by the state’s attorney general. Centuries-old laws are often written in ways that don’t fit easily into modern categories, and a trial court held that the Wisconsin law did not apply to abortions but was rather limited to instances when a pregnant person was attacked. The Wisconsin Supreme Court, which has a new liberal majority after last year’s supreme court election, is considering whether to take up an appeal, as well as a separate action by Planned Parenthood seeking to establish a state constitutional right to abortion.

On the federal front, Jonathan F. Mitchell, the lawyer behind Texas’s S.B. 8 abortion law, has argued that the 1873 Comstock Act offers a path to criminalizing the shipment of pills and other materials used for abortions. (Notably, while the mifepristone case currently before the U.S. Supreme Court is unlikely to turn on the Comstock Act, Justices Clarence Thomas and Samuel Alito both referred to it during the oral argument.)

These zombie laws are suddenly live issues because of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization that Roe v. Wade was wrongly decided. The Court declared in Dobbs that the authority to regulate abortions “must be returned to the people and their elected representatives.” But Arizona’s ruling and the potential enforcement of other zombie laws raise the question about which “people” actually get to make these decisions — today’s citizens or those from centuries past.

They also highlight an often underappreciated argument for the importance of respecting precedent: generations of Americans expended no political energy to remove inoperative abortion laws from the books, relying on the fact that Roe set a federal floor for abortion rights. Now Dobbs threatens to resurrect those laws, often in political environments that can make repeal an uphill climb.

These questions loom large with a Supreme Court supermajority that has shown little regard for precedent, some of whose justices have expressed skepticism about other fundamental rights. Both sodomy laws and same-sex marriage bans remain on the books in several states, for example.

What happens next in Arizona? A lot remains uncertain about whether and how its zombie law will fully animate. Due to various court orders and procedural rules, the state’s abortion ban remains blocked until June 8, according to the Arizona attorney general. Last week, the Arizona house narrowly blocked an effort to repeal the law, and state Republicans remain deeply divided over how to proceed. Donald Trump has weighed in that the court “went too far” and urged lawmakers to “remedy” the ruling. Legislators are expected to reconvene on Wednesday.

There also continues to be a path for further legal challenges to the 1864 law, as David Cohen, a reproductive rights scholar at Drexel University, explained to State Court Report in an interview this week. The Arizona Supreme Court’s ruling in Planned Parenthood of Arizona v. Hazelrigg was based on statutory interpretation — whether a 2022 law that provided for a 15-week abortion ban was intended to repeal the earlier law. The court held that it was not, but it left for another day whether there might be a basis to challenge the law under the state constitution. That will happen first in the trial court, although we don’t know yet how plaintiffs are planning to proceed and who else may jump into the fray.

Finally, the state constitution itself could change this November. Arizona is one of 17 states with a working ballot initiative process for constitutional amendments, offering one path for voters to slay zombies. As Erin Geiger Smith detailed for State Court Report, advocates there say they have already collected enough signatures to put an abortion rights amendment on the ballot this fall. There are also suggestions that the state legislature might put forward a rival amendment seeking to constitutionalize a 6– or 15– week ban. As Cohen observed in his interview, “This is a complicated story with so many chapters yet to be written.” When it comes to the future of abortion access in Arizona, the only thing that’s particularly clear right now is that there’s a lot we don’t yet know.