Undead laws can come back to bite you
Adultery is a crime in New York state, but no one pays much attention to the 1907 law that made it so. It is seldom enforced, and never since 2010 — perhaps not coincidentally the year that New York adopted no-fault divorce.
So why bother removing it from the penal code, as legislators are trying to do?
A bill repealing the law recently passed both state houses with bipartisan support, a few votes against (“I don’t support adultery in any way,” said Republican State
Sen. James Tedisco of Saratoga) and some grumbling about wasting time in the middle of the budget process.
The bill’s sponsor, Assemblyman Charles Lavine of Long Island (D), argued “any criminal law that penalizes intimate behavior between consenting adults does not deserve to be on the books.” Agreed.
And also: These days you never know when a “dead” law could come back to bite you.
That’s the terrifying scene that confronts us in Arizona this week, with the resurrection of an antiabortion law from 1864 — a near-total ban on the procedure, a potential penalty of 2 to 5 years imprisonment for doctors, enacted decades before Arizona was a state and more than 50 years before women had the right to vote.
There are laws — so-called zombies — that remain on the books though they’ve been found (or are assumed) to be unconstitutional or unenforceable, unless someone musters the political will to repeal them. Which is often never.
For instance, seven state constitutions bar atheists from holding public office, although the Supreme Court struck down those provisions in 1961’s Torcaso v. Watkins. Roy Torcaso was a Maryland atheist whose refusal to declare a belief in God cost him a government appointment. He sued and won at the highest level. But because the state never changed its constitution, Maryland still technically discriminates.
The word “technically” surfaces often in reference to zombie laws — also “arcane,” “relic” “antiquated” and “obsolete.” These laws have been left
for dead under the assumption, I suppose, that the future is a road that leads toward social progress.
Indeed, it’s hard to imagine anyone actually trying to bar an atheist from office — or arrest someone for adultery in any of the 16 states with antiadultery statutes. After all, as Lavine said, “America is changing.”
But, if Dobbs v. Jackson taught us anything, it’s that America could change back.
The future might lead us backward, where the zombies can attack.
When Roe v. Wade was overturned, Wisconsin’s 1849 abortion ban, some 50 years moribund, sprung back to life, shutting down Planned Parenthood’s clinics for more than a year. Arizona’s 1864 ban similarly wrought horror-movie havoc after Dobbs; no one knew whether it or a more recent, less restrictive ban took precedence. As the Arizona Supreme Court just decided: the zombie lives.
Picture two menacing creatures in tattered 19th-century garb sending abortion providers scattering. Also picture women with scheduled abortions being turned away from clinic doors, sobbing.
Zombie lore is unclear about the mechanism by which the dead come back to life. Is it black magic? Weird science? Radiation from a space probe? A reconsideration of previously settled law by an activist right-wing majority on the Supreme Court?
In his concurrence on Dobbs v. Jackson, Justice Clarence Thomas called for overruling the “demonstrably erroneous decisions” of Griswold v. Connecticut, Lawrence v. Texas and Obergefell v. Hodges — the court cases that made contraception, homosexual sex, and same-sex marriage (respectively) legal all across the country, no matter what state laws said.
Some states repealed the unconstitutional laws in question. But some let them lie dormant, with the potential to rise again. Today, Lawrence v. Texas holds back undead laws in 12 states where sodomy is still technically against the law. In 13 states, Obergefell v. Hodges is all that protects the right to same-sex marriage.
Meanwhile, right-wing activists are plotting to reanimate the 1873 Comstock Act, which criminalizes the mailing of abortifacients. The Comstock Act really is a relic, the legislative result of Victorian moral panic and an anti-vice crusader’s revulsion at the “wickedness” he witnessed in New York City.
But in last month’s Supreme Court hearing on FDA v. Alliance for Hippocratic Medicine, which seeks to limit access to the abortion drug mifepristone, Justice Samuel A. Alito Jr. called the Comstock Act “a prominent provision … not some obscure subsection of a complicated obscure law.” In other words, very undead.
Sen. Tina Smith (D-Minn.) has vowed to repeal Comstock, as legal scholars and The Post are urging. “Anti-abortion extremists will continue to exploit any avenue they can find to get the national ban they champion,” Smith wrote in the Times, “and I want to make sure my bill shuts down every one of those avenues.” But to do that she would need weapons: a Democratic majority in the House and a filibuster-proof majority in the Senate.
Zombie lore is unclear on what can actually kill the undead. Sometimes, it’s sonic waves or a blood transfusion. Sometimes, it’s a bullet to the brain.
Sometimes, it has to be voters rising up out of fear for their rights.