Members Only | October 4, 2022 | Reading Time: 4 minutes
The 19th century called. It wants its abortion laws back
There is nothing fun about zombie laws.
Abortion law in this country makes no sense. We knew overturning Roe was going to cause chaos. Trigger bans and newly passed abortion bans are confusing because the life of the mother exceptions are purposely vague to discourage doctors from performing abortions, even when they’re medically necessary.
The latest ruling out of Arizona has created perhaps the weirdest legal confusion yet. There are now two abortion laws. Each contradicts the other. The new one bans abortion at 15 weeks. Then there’s the “zombie” abortion law from before Arizona was a state.
My friends, I know it’s October, and we’re all about to have some fun with zombie costumes, but there is nothing fun about zombie laws.
“Zombie laws” refers to state laws still on the books but are rarely enforced, or laws that are defunct as a result of a superseding law.
After Roe made abortion legal nationwide in 1973, a number of states still had their abortion bans on the books. While those laws were unenforceable, they remained in existence unless the state removed them, which some states like Massachusetts eventually did.
At the time of Dobbs, nine states had this zombie abortion laws on the books. This meant that once Dobbs overturned Roe, the zombie abortion bans could once again be used to criminalize abortions if the state chose to criminalize them. A lot of states also have zombie laws on gay marriage, advertising obscenity and even adultery.
Texas, Michigan, Alabama, Arkansas, Arizona, West Virginia, Mississippi, Oklahoma and Wisconsin retained their pre-Roe abortion bans. Texas’ was permanently enjoined but obviously has found other ways to end abortion in their state. A Michigan judge also struck down the state’s zombie abortion law from 1931 last month. Governor Gretchen Whitmer has expressed commitment to protecting abortion access in the state. Alabama, Mississippi and Oklahoma have trigger ban laws that took effect to make their earlier zombie laws unnecessary. So far only Arizona’s zombie abortion law is in effect but who knows what bizarre legal battles are coming in other states.
It’s hard to imagine any justification for upholding a law from 1864 but it’s particularly bizarre for a law concerning medicine (which has had just a few updates in the last 150 years).
It’s worth noting that everyone who can get pregnant and possibly need an abortion could not vote in federal elections in 1864. Not one person who needs an abortion would have had the opportunity to participate in the making of any of these zombie abortion bans.
While abortion laws began in the 1820s, they regulated post-quickening abortions as misdemeanors. Real abortion criminalization did not begin until the American Medical Association started targeting abortion criminalization in 1858 as part of their attempts to discredit midwives and medicalize gynecology.
The AMA’s argument rested on (racist) race science and fearmongering about race suicide. Anglo-Saxon women were a precious resource wasted if they were not producing children. Additionally, they argued that pregnancy and reproduction were the natural state of women while abortion was supposedly often fatal.
To further discourage abortion among middle-class Protestant (white) women, fearmongering about immigrant takeovers of American institutions increased. There was an attempt to associate reproduction with civic duty and abortion with dereliction of duty.
Catholic immigrants were a particular threat, as they were less likely to have abortions. Rhetoric also attempted to link abortion with infanticide and more “barbarous” less civilized communities. None of these arguments had anything to do with science or medicine.
Dr. Horatio Storer was a key architect of the AMA’s anti-abortion stance. He ghost-wrote a letter signed by the president of the AMA in 1860. It claimed that “the child is alive from the moment of conception.” Storer challenged the quickening doctrine and introduced the concept of life at conception. Since women could not know they were pregnant at the time of conception, part of this idea was that male doctors knew better about women’s own bodies. Encouraging a belief in life at conception made abortion a crime throughout pregnancy, not just after quickening. There was nothing scientific about it but it justified total abortion bans and a need for medical doctors who understand this made-up idea.
The medicalization of childbirth initially caused significantly negative outcomes during childbirth. Midwives only treated pregnant women but doctors would often treat infectious patients or go directly from autopsy to the birthing room. They wouldn’t wash their hands in between and there were outbreaks of childbed fever.
It wasn’t until 1848 that Hungarian doctor Ignaz Semmelweiss made the connection and started ordering doctors to wash their hands in between patients. It took another few decades before this became common practice for all doctors in the US.
Yep, that means that the doctors who constructed the “life begins at conception” framing and urged abortion criminalization didn’t even know to wash their hands in between patients.
They also thought hysteria was a real disorder that could be cured through masturbation and that the removal of the ovaries was a reasonable treatment for a whole host of issues (including insanity). These aren’t men we should listen to for guidance on abortion laws.
While Arizona might be the only state with a zombie law in effect right now, contemporary anti-abortion laws aren’t that different from the 19th century ones. They might have exceptions for rape and incest as well as for the life of the mother, but many are still banning abortion at “conception” with no medical basis to do so.
It’s reasonable to be shocked at an Arizona judge who allowed an 1864 abortion ban to go into effect, especially when there is a conflicting 15-week ban also in effect. In reality, though, all total abortion bans are 19th-century laws developed from the scientific minds of men who didn’t even know to wash their hands.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.