After Roe, States Fight Conflicting Abortion Bans

Boise, Idaho

In Arizona, Republicans are battling among themselves over whether a 121-year-old anti-abortion law from the pre-state days of the Wild West, when Arizona was still frontier mining territory, should be enforced on a version of 2022.

In Idaho, meanwhile, it’s unclear whether a pair of early 1970s laws making it a crime to “knowingly assist” in an abortion or publish information about how to induce an abortion. abortion will be enforced alongside the state’s near-total new law. to forbid.

The U.S. Supreme Court decision overturning Roe v. Wade has lawyers, prosecutors and residents of red states facing a legal quagmire created by decades of often conflicting anti-abortion legislation.

Politicians and state government prosecutors are trying to determine which laws and provisions are in effect. And abortion rights advocates who go to court to protect the right to terminate a pregnancy find themselves fighting on multiple fronts.

Lawyers for Idaho Attorney General Lawrence Wasden’s office are combing through all of the state’s abortion laws with a fine-toothed comb, Wasden spokesman Scott Graf said.

“Following last week’s ruling, part of our subsequent work now is to review Idaho’s existing abortion laws and examine them through a post-Roe legal lens,” Graf said. “This work has begun and will continue in the coming weeks.”

In West Virginia, the American Civil Liberties Union has filed a lawsuit challenging an abortion ban that was put on the books in 1882. The organization says the law conflicts with more recent and should therefore be zero.

“We will not sit idly by as this state is transported back to the 1800s,” the organization’s legal director, Loree Stark, said in a statement. “Every day that uncertainty remains about the applicability of this law is another day that West Virginians are denied essential and lifesaving health care.”

In Wisconsin, Attorney General Josh Kaul filed a lawsuit on Tuesday challenging a 173-year-old abortion ban, arguing that modern generations have never consented to it. The 1849 law prohibits abortion in all cases except to save the life of the pregnant person – in contradiction to Wisconsin laws of the mid-1980s which prohibit the procedure after a fetus has reached the point where it could survive outside the womb with medical intervention.

Arizona GOP officials disagree on which abortion laws apply. Attorney General Mark Brnovich announced Wednesday that a pre-state law banning all abortions is now enforceable, but Republican Gov. Doug Ducey said a law he signed in March overrides the 1901 ban.

When the Idaho Legislature passed a “trigger law” in 2020 that would automatically ban nearly all abortions 30 days after Roe’s fall, lawmakers took some steps to avoid conflict by specifying that the law would supersede others. prohibitions. Lawmakers put similar language in another ban passed earlier this year, saying the 2020 law would take precedence.

But they may have overlooked a few clauses in the decades-old bylaws.

The 2020 trigger law specifically states that the person requesting the abortion cannot be charged with a crime, instead focusing prosecution efforts on the abortion provider. This would appear to overturn a 1973 law that makes it a crime for a person to have an abortion, but it’s unclear whether another part of the old law making knowingly aiding an abortion a crime could still be enforceable.

“It’s hard to see how many of them are surviving, because of all the conflict,” Twin Falls County Attorney Grant Loebs said of the nearly three dozen anti-abortion laws in place in the state. ‘Idaho.

It will be up to individual county prosecutors to decide how to proceed initially, said Loebs, who is also president of the Idaho Prosecuting Attorneys Association. From there, the judges will determine it.

Ultimately, he expects Idaho lawmakers will have a lot of tweaking to do in the years to come.

“I think every state that does this is going to have the same issues,” Loebs said.

All of this means a lot of juggling for abortion rights advocates.

Planned Parenthood is suing Idaho’s two new laws. He asked the Idaho Supreme Court to hear arguments in both cases on the same day in early August in hopes of getting a ruling before the trigger law goes into effect.