Roe v. Wade Being Overturned Would See Pre-Civil War Abortion Laws Come Back Into Effect

The U.S. Supreme Court is set to hear arguments this term on a Mississippi abortion law, in a case that could have major implications for abortion rights throughout the country—and could see laws from the 19th century take effect once again.

In Dobbs v. Jackson Women's Health Organization the 6-3 conservative majority court will be asked directly to overturn the landmark decision in 1973's Roe V. Wade and the subsequent decision in Planned Parenthood v. Casey.

The Mississippi case deals with a 15-week abortion ban but has taken on even greater importance following the Supreme Court's decision by a 5-4 vote not to grant a stay to Texas' controversial six-week ban on almost all abortions.

The central question for abortion rights advocates is whether the conservative majority could decide to overturn Roe and open the door to restrictive abortion laws at the state level.

In Roe, the court found a constitutional right to abortion before the fetus is viable outside the womb. This decision made states' laws banning abortion unconstitutional and unenforceable.

However, eight states still have laws on the books that ban and criminalize abortion in several ways, including allowing for prison sentences for those who assist in abortions. Two of those laws originally date to before the American Civil War of 1861 to 1865.

An Alabama law originally passed in 1852 and last amended in 1975 provides for fines of between $100 and $1000 and also a possible year in county jail or one year's hard labor for someone who "willfully administers to any pregnant woman any drug or substance or uses or employs any instrument or other means to induce an abortion, miscarriage or premature delivery or aids, abets or prescribes for the same, unless the same is necessary to preserve her life or health and done for that purpose."

Another unenforceable law in West Virginia was originally enacted in 1848 and is current as of 1882. That law says: "Any person who shall administer to, or cause to be taken by, a woman, any drug or other thing, or use any means, with intent to destroy her unborn child, or to produce abortion or miscarriage, and shall thereby destroy such child, or produce such abortion or miscarriage, shall be guilty of a felony, and, upon conviction, shall be confined in the penitentiary not less than three nor more than ten years."

NARAL Pro-Choice America, an abortion rights group, keeps track of abortion legislation and their website notes both current laws aimed at restricting abortion and those that have not been repealed since 1973.

NARAL Acting President Adrienne Kimmell told Newsweek in a statement: "When Roe v. Wade was decided nearly five decades ago, states with abortion bans predating the landmark decision were blocked from enforcing those laws."

"Now, with a direct threat to Roe before the anti-choice supermajority on the Supreme Court, it is imperative that states repeal these outdated, dystopian laws that threaten the future of legal abortion," Kimmel said.

"It is also critical that the Senate pass the Women's Health Protect Act to safeguard the legal right to abortion at a time when reproductive freedom is under unprecedented attack. This important legislation is the best way to stop states from enacting or enforcing bans on abortion."

Mary Ziegler is a professor at Florida State University and the author of Abortion and the Law in America: Roe v. Wade to the Present. She told Newsweek that states that have not repealed their pre-1973 abortion laws have done so intentionally.

"For the most part, states that have retained their pre-Roe laws have done so on purpose - they intend to criminalize all or most abortions again if Roe is overturned," Ziegler said.

"Other states with criminal laws deliberately removed them from the books because a change in Supreme Court jurisprudence might mean an effective abortion ban. There may be some debate on this in more heterogenous states like Michigan and Wisconsin, but we have reason to believe that these states intend to prohibit abortion when they have the chance."

The Texas lawyers behind SB8 have also taken a further step when reasoning about that state's pre-Roe ban," Ziegler said. "Johnathan Mitchell has argued that if Roe is overruled, doctors can be punished retroactively for conduct that was protected by Roe at the time it was performed. All of this signals an intention to use pre-Roe statutes, and to do so aggressively."

Mitchell is the conservative lawyer and former Texas solicitor general who was "instrumental" in crafting the state's abortion ban, according to Texas Right to Life.

The Supreme Court is not due to hear oral arguments on Mississippi's abortion law until December 1 and a decision will come next year.

Pre-Civil War Laws Could Affect Abortion Rights
If Roe v. Wade is overturned, laws dealing with abortion originally passed before the Civil War would become enforceable again.