Post-Roe, states fight conflicting abortion bans

BOISE, Idaho (AP) — In Arizona, Republicans are arguing with each other over whether a 121-year-old anti-abortion law from the pre-statehood Wild West days, when Arizona was still frontier mining territory, should be enforced in a version 2022.

In Idaho, meanwhile, it’s unclear whether a pair of laws from the early 1970s making it a felony to “knowingly assist” in an abortion or post information about how to induce it will be applied alongside the newer near-total law. of the state. prohibition.

The US Supreme Court ruling that overturned Roe v. Wade has advocates, prosecutors and residents of Republican states facing a legal quagmire created by decades of often contradictory anti-abortion legislation.

Politicians and state government attorneys are trying to determine what laws and regulations are in place. And abortion rights advocates who go to court to protect the right to terminate a pregnancy find themselves fighting on multiple fronts.

Lawyers with Idaho Attorney General Lawrence Wasden’s office are reviewing all of the state’s abortion statutes carefully, Wasden spokesman Scott Graf said.

“Following last week’s decision, part of our subsequent work now is to review Idaho’s existing abortion-related laws and examine them through a post-Roe legal lens,” Graf said. “That work has begun and will continue in the coming weeks.”

In West Virginia, the American Civil Liberties Union has filed a lawsuit challenging an abortion ban that was put on the books in 1882. The organization says the law conflicts with newer laws and therefore should be struck down. .

“We will not stand idly by as this state is dragged back into the 19th century,” the organization’s legal director, Loree Stark, said in a statement. “Every day that uncertainty remains over the applicability of this statute is another day that West Virginians are denied critical, life-saving health care.”

In Wisconsin, Attorney General Josh Kaul filed a lawsuit Tuesday challenging a 173-year-old abortion ban, arguing that modern generations never consented. The 1849 law prohibits abortion in all cases except to save the life of the pregnant person, in conflict with Wisconsin laws from the mid-1980s that prohibit the procedure after the fetus reaches the point where could survive outside the womb with medical intervention.

Arizona Republican officials disagree on what abortion laws are applicable. Attorney General Mark Brnovich announced Wednesday that a pre-statehood law banning all abortions now applies, but Republican Gov. Doug Ducey has said a law he signed in March takes precedence over the 1901 ban.

When the Idaho Legislature passed a “trigger law” in 2020 that would automatically ban almost all abortions 30 days after Roe fell, lawmakers took some steps to avoid conflict by making it clear that the law would supersede other bans. Lawmakers put similar language into another ban passed earlier this year, saying the 2020 law would take precedence.

But some clauses in the decades-old statutes may have been overlooked.

The 2020 activation law specifically says that the person seeking the abortion cannot be charged with a crime, instead focusing prosecution efforts on the abortion provider. That would appear to overturn a 1973 law that makes it a felony for a person to have an abortion, but it’s unclear whether another part of the older law that makes it a felony to knowingly aid an abortion might still be enforceable.

“It’s hard to see how much survives, because of all the conflict,” Twin Falls County Prosecutor Grant Loebs said of the nearly three dozen anti-abortion laws on Idaho’s books.

At first, it will be up to individual county prosecutors to decide how to proceed, said Loebs, who is also president of the Idaho Tax Lawyers Association. From there, the judges will decide.

Ultimately, he expects Idaho lawmakers to have to make a lot of adjustments in the years to come.

“I think every state that does this is going to have the same problems,” Loebs said.

It all means a lot of juggling for abortion rights advocates.

Planned Parenthood is suing over Idaho’s two newest laws. He has asked the Idaho Supreme Court to hear arguments in both cases on the same day in early August in hopes of getting a ruling before the trigger law takes effect.


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