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Wednesday, July 02, 2025

Zombie laws and Dobbs

Dobbs created the perfect laboratory for zombie laws. Many states had 19th-century bans or near-bans that were obviously unenforceable (in some states enforcement had been enjoined; in others officials knew they could not enforce these laws and so did not try). Post-Roe, states enacted new laws regulating abortion--prohibiting it in narrower circumstances; regulating health-care providers; and regulating funding. Post-Roe, that ban is enforceable, so long as it remains on the state-law books. The question becomes whether the post-Roe legislation impliedly repealed the stricter pre-Roe legislation.

The Fifth Circuit considered this in 2023 as to Texas law but made a big mess. A divided Wisconsin Supreme Court took a cleaner and more direct path, holding that 50 years of "comprehensive legislation about virtually every aspect of abortion including where, when, and how health-care providers may lawfully perform abortions" so "thoroughly covers the entire subject of abortion that it was clearly meant as a substitute for the 19th century near-total ban on abortion."

I will take one contrarian position among liberals--my distastee for Chief Justice Karovsky's concurring opinion (which reflects many of the questions she asked during argument in the case). She traces the history of abortion regulation, tells stories of women affected by abortion bans, and highlights how horrible it would be if Wisconsin's pre-Roe law were in effect and enforceable. Her conclusion:

I tell the stories of Amber, Candi, Josseli, and my great-grandmother Julia to remind us that severe abortion restrictions operate like death warrants. Under such restrictions women, children, and pregnant people are denied life-saving medical care while medical professionals are forced to sit idly at their bedsides, unable to do their jobs. Extreme abortion restrictions revive a time in our history driven by misogyny and racism, divorced from medical science; it is a world that must be left behind.

All true. And all beside the point. If the legislature did not impliedly repeal this law, Dobbs de-zombified it, and it is enforceable, regardless of how bad it is as policy (unless those ills mean it violates some other provision of the state or U.S. Constitution) If the legislature impliedly repealed, the law is off the books and no zombie has been revived. The answer to that question does not and cannot turn on the law's bad effects or its stupidity and horror as public policy.

Posted by Howard Wasserman on July 2, 2025 at 12:41 PM | Permalink

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