Laws may return predating women’s vote

When Roe v. Wade was decided in 1973, it invalidated anti-abortion laws in many states. Now that the Supreme Court has struck it down, these states face questions about whether and how the old laws will take effect again.

Some states avoided this confusion by taking preemptive action. In the half-century that the Supreme Court guaranteed the right to abortion, a number of states passed trigger laws automatically restricting abortion if Roe were ever overturned; now those laws are going into effect. Other states passed laws codifying abortion rights in the event Roe was reversed.

But a few states did nothing at all, and now confusion reigns.

In Arizona, a 15-week abortion ban will go into effect this fall, but the Republican state attorney general is trying to enforce a stricter 1901 law immediately.

In Michigan, Democratic Gov. Gretchen Whitmer is fighting a 1931 law that would ban abortion even in cases of rape or incest. Abortion remains legal there by court injunction.

In West Virginia, a law from 1849 — before West Virginia was even a state — which makes providing an abortion a felony, is enforceable, according to the Republican state attorney general.

And in Wisconsin, the Democratic attorney general is fighting enforcement of a law, also from 1849, making it a felony to provide an abortion unless it is needed to save the life of the mother. The Democratic governor has said he’ll grant clemency to anyone charged under it.

For many women, it’s jarring to contemplate resurrecting laws from a bygone era when women’s rights were drastically curtailed.

In 1849, West Virginia was still part of Virginia. (The Trans-Allegheny region didn’t break off until the Civil War.) Women of any race or class had difficult lives and few rights.

In 1850, there were about 10,000 enslaved Black women in the counties that became West Virginia. These women had no control over their financial, professional, political or sexual lives. They could not legally marry, and there was no legal protection against sexual assault. Many enslaved women, particularly in Virginia, were subjected to rape and forced breeding. They had no right to travel, so they could not have crossed state lines for an abortion.

Nationally, many rights for women were still years or even decades away, according to the National Women’s History Alliance, including receiving a minimum wage equal to men’s (1938), serving on juries without restriction (1975), using birth control (1965), keeping a job after becoming pregnant (1975), enlisting as full members of the military (1948), serving in combat (2013), attending an Ivy League school (1983), owning a credit card (1974) and pressing charges for sexual assault against a spouse (1993).