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Wednesday, April 10, 2019

The Implied Repeal of Abortion Restrictions

Here's a question I'm thinking about. Suppose a state prohibited nearly all abortions prior to Roe v. Wade. After Roe, the state attempted to restrict abortion as much as constitutionally possible (say by banning nearly all third trimester abortions) and enacted a statute doing that. Would that subsequent statute be an implicit repeal of the earlier prohibition or not?

Here's why this is interesting. Suppose Roe were overruled tomorrow. What would state law be on abortion? One view could be that the pre-Roe statute applies unless it was expressly repealed. Another would be that the only the post-Roe restrictions would apply until the state legislated differently. This might matter a lot. A new state ban (or near ban) on abortion would take time to enact. Maybe it would not get enacted at all.  What would state law be in the interim?

Posted by Gerard Magliocca on April 10, 2019 at 12:51 PM | Permalink

Comments

The general rule in statutory interpretation is a presumption against implied repeal. That is, when faced with a more recent statute that seems to conflict with an earlier one, we try to read them in a way that wouldn't require us to infer that the legislature meant to repeal the earlier statute sub silentio. Here, a natural reading of the two statutes wouldn't even create a conflict, so I don't know why we would go out of our way to create one. We often have crimes that overlap in their application.

Posted by: Biff | Apr 11, 2019 1:55:40 PM

How many doctors were released from prison after Roe v. Wade? Nobody ever talks about the mass de-incarceration of 1973 when the prison doors opened and all those doctors walked free.

Posted by: Kraz | Apr 11, 2019 1:09:39 PM

"by banning nearly all third trimester abortions"

95% of third-term abortions are to save the life of the mother (self-defense)--which has always been legal in every state and nearly every country. Women have never been expected to die during childbirth or on the battlefield.

Third-term abortion bans (except to save the life of the mother) do not ban nearly all third-term abortions. Just as second-term abortion bans do not ban nearly all abortions, since 90% of abortions are during the first-term.

Posted by: A third-term | Apr 11, 2019 11:39:20 AM

I can imagine a state statute that expressly says that there is no repeal of the prior ban. In the absence of that, though, it's a good question (re: guns). A legislature can maintain an unconstitutional statute if it wants to.

Posted by: Gerard | Apr 11, 2019 11:34:14 AM

Suppose a state prohibited nearly all concealed and open carry of firearms prior to DC v. Heller. After Heller, the state attempted to restrict concealed and open carry as much as constitutionally possible (say by requiring a "good reason" to get a license and then never giving any licenses) and enacted a statute doing that. Would that subsequent statute be an implicit repeal of the earlier prohibition or not?

Posted by: NRA | Apr 11, 2019 10:42:46 AM

Thanks. This is very helpful.

Posted by: Gerard | Apr 10, 2019 9:12:49 PM

I will add the caveat that the report is not up to date (it was updated in 2007), so things will have changed in many states. For example, Kentucky and Arkansas both just passed trigger bans, and North Dakota's trigger ban is waiting for a signature from the governor.

Posted by: reproanon | Apr 10, 2019 2:06:05 PM

I would suggest checking out pp. 12-13 of the Center for Reproductive Rights's "What if Roe Fell" report for some interesting answers to this question. It discusses implied repeal, which might apply to some abortion regulations. It also discusses the difference between "bans-in-waiting" and "trigger laws" which will go into effect in different ways were Roe overturned.
Link: https://www.reproductiverights.org/sites/default/files/documents/Roe_PublicationPF4a.pdf

The whole report is quite interesting if you want to know more generally about what would happen if Roe fell, state-by-state.

Posted by: reproanon | Apr 10, 2019 2:01:23 PM

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