The state of the judicial system and the federal courts in the United States today is, simply put, appalling. The notion of judicial review, which allows courts to determine the constitutionality of legislation, has gone too far, and the judicial branch, which is designed to check and uphold the integrity of the executive and legislative branches, has essentially become a political tool for parties to use as they wish. The court system, which was once thought of as an impartial and guiding branch, has lowered itself to the level of politics and is clearly ruling on issues that overreach its enumerated power in the U.S. Constitution, a principle that the new Arizona Supreme Court ruling on abortion exemplifies.
On Tuesday, April 9, the Arizona Supreme Court upheld an 1864 law effectively banning abortion — even in cases of rape or incest — punishing any woman who has an abortion or anyone who helps someone obtain an abortion. They make a singular exception for “the mother’s life.” This law, which was created before Arizona even became a state, had been blocked after the U.S. Supreme Court ruled in the 1973 Roe v. Wade case, but, since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to overturn Roe, the law made its way back to Arizona’s legislature.
How did Arizona arrive at this stage in politics in the first place? Immediately after Roe v. Wade was overturned, Republican Attorney General Mark Brnovich “persuaded a state judge [to] lift an injunction that blocked enforcement of the 1864 ban.” As such, the Arizona Supreme Court, which had expanded in 2016 from five to seven justices — all appointed by Republican governors — ruled that the 1864 law could constitutionally be enforced. However, the decision will not take effect for at least two weeks, pending decision in a related case.
When the 1864 law was written, Arizona was not a state, women were not allowed to vote and numerous other laws were in place that we find both morally and legally repugnant today — not to mention that the law was created in the middle of the Civil War. Maternal mortality in 1864 was extraordinarily high at least partly due to the fact that, in cases where the mother’s life is at stake due to complications with a fetus or other pregnancy-related issues, doctors did not have the tools to intervene safely. However, these laws that were initially passed in the mid-19th century were rarely enforced, as women often did not know they were pregnant until far later, and these laws were mainly designed as a first step toward the licensing of medical professionals and were primarily enforced in cases of an abortion patients’ death. Whatever the intent was 160 years ago, the law became — and still is today — a way to prevent women from having agency over their bodies as Republicans continue to seek an abortion ban for “moral” reasons.
These old laws that come back into modern politics are known as “zombie laws” — laws that simply exist on record for years, being neither repealed nor enforced. The 1864 abortion law is one such example, as it was deemed unconstitutional after Roe was decided, but was never actually repealed. Abortion laws are not the only “zombie laws” that exist — there are also numerous laws discriminating against LGBTQ+ people which were never actually repealed, but are simply unenforceable due to the Supreme Court’s decision in Obergefell v. Hodges, a case that gave same-sex couples the constitutional right to marriage. If, like Roe, Obergefell were ever overturned, these “zombie laws” gain authority and push our country back in time.
Laws that push our country back more than 150 years are unacceptable and no one — especially not federal courts — should be able to rule that they are enforceable. It is not any court’s place to take the role of legislating, especially when those laws concern real people’s lives, and by enforcing these “zombie laws,” the courts are effectively taking that role. Since the overturning of Roe in 2022, abortions have not decreased, but the amount of women unable to safely obtain one if their lives are at risk has. Surprisingly, this case has awoken some Republicans too — even Kari Lake, who has suddenly realized that turning the clock back this far is simply too harmful to women.
Groups, including Planned Parenthood and the American Civil Liberties Union, are attempting to stop this law from being fully enforced and, smartly, are attempting to pass an amendment in Arizona’s State Constitution that will maintain the right to a safe abortion up to a certain point for women. The president of Arizona Planned Parenthood said in a statement, “We know that it is now more important than ever to provide care to as many patients as we can, while abortion is still legal in Arizona, and we are swiftly expanding our services to meet the increasing needs of our community. We will not be intimidated or silenced by anti-abortion extremists, because we know the overwhelming majority of Arizonans support the right to abortion. We will continue to use every avenue to fight for a future where all Arizonans can make decisions about our lives, our bodies and our futures.”
The United States cannot be allowed to continue this backsliding into an era where women have no control over the right to abortion and their bodies. It is not any court’s place to continue enforcing laws because of purely partisan motives, as both lower federal courts and the U.S. Supreme Court have been doing. It is time to enshrine and reinstate a federal right to abortion and to allow women to have a say over what happens to their bodies.
Samantha Rigante is a sophomore majoring in philosophy, politics and law.
Views expressed in the opinions pages represent the opinions of the columnists. The only piece that represents the views of the Pipe Dream Editorial Board is the Staff Editorial.