Plus: Oral arguments to watch for in May

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Earlier this month, the Arizona Supreme Court ruled

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that an 1864 law that bans virtually all abortions in the state is still operative. The decision upended state and national politics in a key swing state and brought new attention to so-called zombie laws — long-unenforced statutes that remain on the books.

Wisconsin, for example, has a similar law dating back to 1849 that has been challenged in court by the state’s attorney general. Centuries-old laws are often written in ways that don’t fit easily into modern categories, and a trial court held that the Wisconsin law did not apply to abortions but was rather limited to instances when a pregnant person was attacked. The Wisconsin Supreme Court, which has a new liberal majority

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after last year’s supreme court election, is considering whether to take up an appeal, as well as a separate action by Planned Parenthood seeking to establish a state constitutional right to abortion.

On the federal front, Jonathan F. Mitchell, the lawyer behind Texas’s S.B. 8 abortion law, has argued

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that the 1873 Comstock Act offers a path to criminalizing the shipment of pills and other materials used for abortions. (Notably, while the mifepristone case

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currently before the U.S. Supreme Court is unlikely to turn on the Comstock Act, Justices Clarence Thomas and Samuel Alito both referred to it during the oral argument.)

These zombie laws are suddenly live issues because of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization that Roe v. Wade was wrongly decided. The Court declared in Dobbs that the authority to regulate abortions “must be returned to the people and their elected representatives.” But Arizona’s ruling and the potential enforcement of other zombie laws raise the question about which “people” actually get to make these decisions — today’s citizens or those from centuries past.

They also highlight an often underappreciated argument for the importance of respecting precedent: generations of Americans expended no political energy to remove inoperative abortion laws from the books, relying on the fact that Roe set a federal floor for abortion rights. Now Dobbs threatens to resurrect those laws, often in political environments that can make repeal an uphill climb.

These questions loom large with a Supreme Court supermajority that has shown little regard for precedent, some of whose justices have expressed skepticism about other fundamental rights. Both sodomy laws and same-sex marriage bans remain on the books in several states, for example.

What happens next in Arizona? A lot remains uncertain about whether and how its zombie law will fully animate. Due to various court orders and procedural rules, the state’s abortion ban remains blocked until June 8, according

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to the Arizona attorney general. Last week, the Arizona house narrowly blocked an effort to repeal the law, and state Republicans remain deeply divided over how to proceed. Donald Trump has weighed in that the court “went too far

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” and urged lawmakers to “remedy” the ruling. Legislators are expected to reconvene on Wednesday.

There also continues to be a path for further legal challenges to the 1864 law, as David Cohen, a reproductive rights scholar at Drexel University, explained

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to State Court Report in an interview this week. The Arizona Supreme Court’s ruling in Planned Parenthood of Arizona v. Hazelrigg was based on statutory interpretation — whether a 2022 law that provided for a 15-week abortion ban was intended to repeal the earlier law. The court held that it was not, but it left for another day whether there might be a basis to challenge the law under the state constitution. That will happen first in the trial court, although we don’t know yet how plaintiffs are planning to proceed and who else may jump into the fray.

Finally, the state constitution itself could change this November. Arizona is one of 17 states with a working ballot initiative process for constitutional amendments, offering one path for voters to slay zombies. As Erin Geiger Smith detailed

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for State Court Report, advocates there say they have already collected enough signatures to put an abortion rights amendment on the ballot this fall. There are also suggestions that the state legislature might put forward a rival amendment seeking to constitutionalize a 6- or 15- week ban. As Cohen observed in his interview, “This is a complicated story with so many chapters yet to be written.” When it comes to the future of abortion access in Arizona, the only thing that’s particularly clear right now is that there’s a lot we don’t yet know.





Election 2024: Voters as the Fourth Branch of Government

State constitutions have multiple layers of protections for the right to vote. That respect for voting should translate to courts having an increased level of skepticism regarding laws that would suppress the vote and infringe on citizens’ ability to govern themselves through voting, argues law professor Joshua A. Douglas, the author of the forthcoming book The Court v. The Voters: The Troubling Story of How the Supreme Court Has Undermined Voting Rights

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. “State courts should take a novel approach: a new election rule is invalid if it will lower voter participation,” he writes. Read more

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Florida Voters Could Protect Abortion Rights, but Path Remains Bumpy

The Florida Supreme Court ruled this month that citizens will have the right to vote this fall on whether to amend the state constitution to protect abortion rights. But whether voters will really have the last word depends on how lawmakers and the courts react if the people vote to protect abortion, writes University of Florida law professor Jonathan L. Marshfield. Lawmakers could engage in “implementation sabotage” by narrowly defining the initiative, he explains, or the court could undermine an abortion amendment by expanding the rights of fetuses. Read more

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Judicial Interview Series: Former Texas Supreme Court Chief Justice Wallace Jefferson

State Court Report’s series of interviews with state court judges continues with Wallace Jefferson, former chief justice of the Texas Supreme Court. He discusses pushing for reforms to ensure that wrongful convictions are overturned and how weaknesses in the judiciary threaten democracy. Read more

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Constitutional Provisions Created for Emergencies Need Greater Clarity

Thirty-five state constitutions have continuity-of-government provisions that give legislatures broad powers in case of catastrophic emergencies, such as nuclear attacks. But the language of those clauses is ambiguous enough to leave open to interpretation who has what power and how far it extends. Kevin Frazier, executive director of the Center for Law and AI Risk and assistant professor at St. Thomas University College of Law, argues that “independent commissions should be created to exercise that incredible power.” Read more

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Identifying Judges Who Impose Excessive Sentences

A new study reviewed 27,000 New York state appellate decisions to identify instances in which appellate courts deemed prison sentences unduly harsh and determine which lower court judges repeatedly imposed excessive sentences. The report presents a “replicable and scalable” way to increase judicial transparency, writes Oded Oren, one of the study’s authors and the founder and executive director of Scrutinize

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. “Utilizing appellate decisions as a data source extends well beyond examining excessive sentences.” Read more

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Wisconsin Supreme Court Considers Legislative Vetoes

The Wisconsin legislature has amassed a trove of veto powers, allowing a small number of legislators to override the governor on issues like administrative rules and spending of already appropriated funds. The Democratic governor is asking the Wisconsin Supreme Court to rein in the legislature’s powers. Oral arguments were held last week, and the case “could be part of a historic shift” on the use of legislative vetoes, writes Derek Clinger, a senior staff attorney for the State Democracy Research Initiative at University of Wisconsin Law School. Read more

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Upcoming Oral Arguments in May

State supreme courts in Nevada, Pennsylvania, Tennessee, and Wisconsin will hear cases on a ballot initiative regarding voter IDs, firearm background checks, at-will employment and free speech, and the legality of ballot drop boxes. An Arizona appeals court will hear election denier Kari Lake’s objections to election processes in that state’s 2022 gubernatorial race. Read more

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What Else We’re Reading

George Mason University law professor Ilya Somin

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examines for the Volokh Conspiracy

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a recent U.S. Supreme Court decision on the Takings Clause, which held that property owners whose land was damaged by flooding could pursue claims under Texas state law. The high court did not resolve the question of whether the federal Takings Clause is “self-executing.”





You Might Have Missed

The U.S. Supreme Court declined to hear

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a case challenging Washington State’s Voting Rights Act, meaning the law will remain in effect. Last year, Yurij Rudensky and Sonali Seth analyzed the Washington Supreme Court decision that upheld the act

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, which they argued was “a powerful rejection of arguments that seek to create friction between the U.S. Constitution and state law voting rights protections.”

The Indiana Supreme Court upheld the state’s near-total abortion ban in August. But this month a state appeals court

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affirmed a preliminary injunction

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against the ban for plaintiffs whose sincerely held religious beliefs would demand an abortion in circumstances prohibited by the ban. Indiana is one of multiple states

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where abortion bans are being challenged on religious freedom grounds.





Notable Cases

Babe Vote v. McGrane

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, Idaho Supreme Court

Upheld a law banning student IDs as required identification to vote under the state constitution because “determining the appropriate forms of personal identification for registration and voting” is rationally related to the legislature’s interest in protecting the integrity of the election process. State Court Report

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previously wrote about the implications of such prohibitions for young voters. // Boise State Public Radio

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Office of the State of Public Defender v. Bonta

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, California Supreme Court

Civil rights and legal organizations, including the Office of the State Public Defender and divisions of the American Civil Liberties Union and the Legal Defense Fund

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, filed a challenge to California’s death penalty statute, arguing it is racially discriminatory and violates the equal protection guarantees of the state constitution. // Courthouse News Service

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State of Washington v. Gator’s Custom Guns

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, Cowlitz County (Washington) Superior Court

Ruled that the state’s weapons ban on magazines that hold more than 10 rounds of ammunition violates the state and U.S. constitutions. Relying on New York State Rifle & Pistol Association v. Bruen, the court said the state failed to point to a historical law

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that would justify the current ban. The Washington Supreme Court issued a temporary stay

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. // Cascade PBS

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You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database

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