Zombie Laws Don’t Have to Be the Last of U.S.

In the wake of the recent raft of horrifying SCOTUS decisions, Democrats are looking for proactive ways to contain the damage.

As controversy swirls around the 2024 Election and Democrats scramble to shore up their ticket in the wake of a disastrous June presidential debate, it is imperative to push past the media frenzy about President Biden’s intellectual fitness for office. Democratic strategists must forcefully articulate second-term policies, particularly those that can disable a right-wing movement that is well-funded and threatens to take the United States back to the 1950s. What is most frequently mentioned, in a Congress that seems frozen by small majorities, is a court-packing plan to disable the current conservative majority on the United States Supreme Court.

While a second term is usually an opportunity for radical solutions, court packing may not be one of them. It is viewed by experts as reducing the independence and legitimacy of the judiciary at least as much as the members of the conservative majority failures: forgetting to disclose lavish gifts, hobnobbing with major donors, hanging flags associated with right-wing militias, and active family connections to the MAGA movement.

But here’s something the Biden administration could put on the agenda for a second term: eliminating the “zombie laws” that right-wing activists use to bring these cases.

Let me explain.

A little over two years ago, when the U.S. Supreme Court issued its decision in Dobbs v. Jackson Women’s Health Organization, 13 states had already enacted abortion “trigger laws—statutes poised to severely restrict or ban the procedure should Roe v. Wade (1973) be overturned. As anti-abortion activists rejoiced, passing restrictive laws in a dozen more states, the majority of Americans were stunned. A freedom once taken for granted for almost a half-century was soon unavailable in almost half the nation. In some cases, getting an abortion now requires several days of travel, while anti-abortion activists are looking for legal ways to stop Roe states from using their resources to help pregnant people.

However, there was a surprise in order for legislators in five states that restrict abortion, but allow it up to six weeks, and/or made exceptions for rape, incest, or the health of the mother. Alabama, Arkansas, Mississippi, Texas, and West Virginia—and two Roe states, Arizona and Wisconsin—found that they had a second set of laws on the books that banned abortion completely, and that overturning Roe triggered those statutes, too. 

Known as “zombie laws,” these statutes, most of which were passed in the 19th century, were never repealed after Roe. As Howard Wasserman of Florida International University’s School of Law explained in 2022, zombie laws are dead in the sense that they have become unenforceable because of new judicial decisions. But they are alive in the sense that they “remain on the books and may be enforced” by a governor or prosecutor seeking to test the Constitution, or reactivated when SCOTUS overturns a precedent. In the case of abortion, only five states—Alaska, California, Hawaii, New York, and Washington—reformed or repealed their laws before Roe rendered state bans in the first two trimesters unconstitutional.

Attorneys General in Roe states can, of course, elect not to enforce the harsher laws. This was Democratic Arizona AG Kris Mayes’ decision gave an almost evenly divided legislature time to repeal an 1864 absolute ban on abortion, passed even prior to statehood. Arizona’s Democratic governor Katie Hobbs signed that legislation in May 2024. Wisconsin took another route in 2023: After temporarily pausing abortion services, citizens elected a Democratic Supreme Court Justice, who then joined the majority in overturning the law.

But Dobbs has given other obsolete statutes new life. Originally passed in the 19th century to prevent grave robbing, laws against mishandling or mutilating the dead criminalized a black market in corpses stolen and sold to medical schools (with tongue firmly planted in cheek, one Louisiana journalist argued in 2021 that this zombie law made the killing of zombies illegal in the Pelican state). Such laws can now be activated by overzealous judges and prosecutors seeking to expand on anti-abortion legislation. Just this spring, in Ohio—where citizens had just enshrined the right to abortion up to 22 weeks in the state constitution—a woman who miscarried at home at over 21 weeks while doctors dithered over how far the pregnancy had advanced, was brought before a grand jury on suspicion of having violated the statute. (Ultimately, she was not indicted.)

Because the anti-abortion movement has always been careful to punish providers, not pregnant patients, governors and legislatures in Dobbs states find themselves in a quandary. Repealing zombie abortion laws risks a Republican legislature and governor appearing squishy to anti-abortion voters. Yet risking a zealous judge or prosecutor enforcing harsh criminal penalties against pregnant people, vulnerable people, and medical professionals is bad politics. Pro-abortion ballot initiatives have already been wildly successful in bright-red Kansas, and flipped the Wisconsin court. It is likely that the national firestorm around a 10-year-old child impregnated by rape who had to flee the state helped to drive the vote in Ohio to embed the right to reproductive care in the state constitution. Reproductive rights are currently on the ballot in Colorado, Florida, Maryland, Nevada, and South Dakota for this fall’s presidential election. 

Zombie laws jumped out of the Pandora’s box that pro-life Republican activists opened with Dobbs, but there are possible solutions that a Democratic president supported by a Democratic Congress could pursue. 

Neither one of them requires a Supreme Court majority.

 

First, Repeal the Mother of All Zombie Laws

On June 20, 2024, Senator Tina Smith (D-MN) introduced a bill to void the 1873 Comstock Act which, most jurists agreed until recently, had been rendered moot by the many free speech decisions made by the Warren and Burger Courts. Named after Christian anti-vice crusader and postal inspector Anthony Comstock, the law gives the federal government the power to prosecute anyone sending materials through the mail that are “obscene, lewd and lascivious,” or injurious to public morals. 

Obscenity laws existed at the state and local levels before 1873, and more were passed in the next 80 years. But the Comstock Act created an overarching framework that put federal resources to work to censor, seize sexual materials, and imprison those who trafficked in them. In the late-19th century, this included sending items and publications related to homosexuality, abortion, and birth control through the federal mail: advertising, buying, or selling “rubber goods,” such as birth control cervical caps, condoms, douchebags, and dildos. The Comstock Act also went after “lewd” images of women; sexual art; and even anatomy textbooks used by medical students. 

Because of the diligent work of civil liberties litigators, by 1973, the Comstock Act, as well as similar (and sometimes identical) state laws known as “Baby Comstocks,” had become zombie laws. But it’s easy to see why the original provisions of the federal version might be attractive to today’s right-wing activists, and, thus, difficult to repeal. Not only does it invoke federal law to support a raft of state-level laws banning books, sex education, and information about birth control and abortion, but the explicit prohibition on sending these items through the mail (and perhaps, by extension, FedEx and UPS) also had implications for restricting reproductive freedom. As New York Times columnist Michelle Goldberg pointed out last month, it could prohibit women in the 41 Dobbs states from accessing abortion via telemedicine appointments and pharmaceuticals shipped through the mail.

In fact, Republican activists preparing for a second Trump administration are already eyeing the Comstock Law without naming it. “At no point in the past two decades has the FDA ever acknowledged or addressed federal laws that prohibit the distribution of abortion drugs by postal mail,” writes Roger Severino, the vice-president of Domestic Policy at the Heritage Foundation in an almost 1,000-page roadmap for a second Trump administration. “[T]o the contrary, the FDA has permitted and actively encouraged such activity.” 

The Biden administration has taken the position that Comstock would not cover the mailing of medication, and furthermore, that private shipping services are different from the USPS. Republicans disagree on both points, and Sen. Smith wants her colleagues to ensure that the issue does not come to a Supreme Court whose majority has doggedly enacted the Federalist Society project of diminishing the administrative state’s authority to interpret the law. “We should believe these people when they tell us what they’re going to do,” Sen. Smith argues. “We can’t just sit by and watch that happen without taking action.” 

And abortion isn’t the whole story: Zombie laws could easily reverse other rights and freedoms achieved in the last 50 years. In 2021, Mississippi voters approved a medical marijuana initiative in 2021 which also promised a 5 percent sales tax, only to have it held up by a local mayor who cited an old redistricting law, superseded but never removed from the books. New York State legislators are currently trying to void a law criminalizing adultery, made largely irrelevant by the passage of no-fault divorce decades ago, but potentially revivable by the originalist SCOTUS majority. Alabama voters repealed their state’s anti-miscegenation law in 2000, but the state constitution banned integrated schools and interracial marriage as late as 2021.

 

And Court watchers worry about what effect striking down the right to privacy contained in Roe could have for LGBTQ+ people. Sodomy—which includes all non-procreative sex acts, gay or straight— remains a crime in 12 states, and 13 states have statutes explicitly prohibiting same-sex marriage. 

Repealing laws one by one is a difficult and time-consuming strategy, and in some states, given the centrality of the culture wars to Republican domination, perhaps impossible. But for states that have not been fully captured by Republican extremists and want to fend off challenges to the rights and freedoms their citizens enjoy, there is another route. Remarkably, it was first tried by Republicans over a half century ago when the Reagan administration asked state governments to eliminate laws that discriminated against women. 

 

The Fifty States Project

In early 1981, the Reagan administration had three problems early in its first term. One: Feminism had transformed the Democratic Party, making it difficult to deliver on moral agendas (like ending abortion) that were promised to the New Right coalition that had helped to elect the president. Two: The only thing Ronald Reagan could do—refuse to extend the deadline for ratifying the Equal Rights Amendment (ERA)—had exacerbated women voters’ dislike of him. Three: Fulfilling a campaign promise to appoint the first woman Associate Justice of the Supreme Court had not budged liberal women (because O’Connor was a conservative) and it had made conservative women unhappy (because they believed—correctly, as it turned out—that O’Connor was a “squish” on abortion).

These issues came together in a phenomenon that Reagan aides called “the gender gap,” a puzzlingly large number of women who did not like or trust a president popular in nearly every other demographic. In July 1981, political strategist Richard Wirthlin told Reagan’s closest advisor, Edwin Meese, that the gap was about 10 percentage points, and a problem for the whole party going into the 1982 midterms. (In fact, Republicans would lose 26 seats and control of the House, erasing the majority Reagan had swept in with him in 1980.) Worse, as one female aide wrote to Reagan’s chief of staff, James Baker, membership in advocacy groups like the National Organization for Women had “skyrocketed” since the election.

The problem was particularly acute among young and working women, who had imagined, among other things, that the ERA would render on-the-job gender discrimination  illegal. In October 1981, Reagan unveiled his strategy to win these voters back, one floated at the 1980 nominating convention. Although the president emphasized that economic progress would help women more than anything, he admitted gender discrimination existed, and launched a conservative solution: asking governors to cooperate in eliminating discriminatory laws in their own states. 

“As Governor of California, I signed 14 pieces of legislation eliminating regulations and statutes that discriminated against women,” Reagan told a meeting of governors’ representatives at the White House. “We passed legislation prohibiting sexual discrimination in employment and business matters, established the right of a married woman to obtain credit in her own name, and revised the property and probate laws to give the wife equal rights concerning community property.”

The Reagan administration did not specifically identify zombie laws as a problem, but it is likely that the effort, which rolled out under the direction of White House aide Elizabeth Dole over the next two years, did eliminate them because federal gender equity law changed so drastically during the 1970s. A governor’s task force could search for, and ask the legislature to eliminate, any state law that conflicted with Title IX (1972), prohibiting discrimination by sex in education; and Title VII of the Consumer Credit Protection Act (1974), guaranteeing women’s access to credit in their own names. Supreme Court decisions had also changed the terrain. Earlier that year, in Kirchberg v. Feenstra, the Court unanimously affirmed a wife’s equal right to community property.

The Fifty States Project was not popular in the administration: Understaffed and underfunded, it relied on governors—some Democrats—to be effective. Instead of explicit instructions about what laws to eliminate, it asked each state to set and meet its own goals. Yet it also challenged politicians in both parties to embrace women’s rights as a non-partisan issue, and implicitly threatened to turn the tables on Democrats who claimed President Reagan lacked concern for women’s equality. One administration talking point was that if Democratic governors and legislatures were notified about laws that discriminated against women, and failed to eliminate or rectify them, it would be “something that the voters should know about and presumably they will act accordingly.”

In the end, only 15 states participated, and predictably, the initiative failed to win over either feminists or conservative women whose opposition to ERA had rested on what they believed was the fallacy of gender equality. The gender gap persisted, and the Fifty States Project, viewed across the board as slow and without substance, petered out after the 1984 election, when the gender gap failed to impede Reagan from steamrolling Walter Mondale and the first woman to be nominated by a major party, Rep. Geraldine Ferraro (D-NY).

Neglected as it was within the administration, the Fifty States Project unearthed scores of discriminatory laws, some zombies and others not yet invalidated by litigation or federal legislation. Researchers found sex discrimination in statutes governing inheritance, employment, credit, property law, and criminal codes. And states created easy solutions. For example, Massachusetts Governor Edward King, a Democrat, had legislation introduced a single omnibus bill that eliminated all discriminatory language in the state’s legal code, and commissioned a study to identify “more subtle abuses” in the law. Indiana chose to void all discriminatory legislation by amending its constitution. Administration officials also learned that in 1973, New Mexico had put together a team law of professors to write a bill that made all statutes “sex neutral,” a process that was then recommended to the other states.

At the time, these did seem like small reforms, given the seismic changes that feminist litigation had made at the federal level. Importantly, the elimination of discriminatory laws, some zombies, some not yet covered by the shifting civil rights landscape, was not a question of conviction in the Reagan administration, except for some of the dedicated women who worked on the Fifty States Project: It was a public relations project to show that Reagan cared about women, and evidence of his strong conservative belief in a free market where all actors compete equally.

Forty years later, we have awakened to a different conservatism, one percolating in the Reagan years but held in check by a Republican party that was constrained by judicial and legal precedent. But we now know that discriminatory zombie laws, left to marinate in state statutes, have consequences, and one critical form of activism could be a comprehensive federal project to repeal them at the federal and state levels. 

Critics might argue that this would only work in Democratic, but not all 50, states. But think again. Progressive red-state activists have become adept at using the referendum, ballot initiative, and constitutional amendment processes to push back on the radical-right agenda. The Biden administration, and the Democratic Party, needs to coordinate and support that work, making it a top agenda item for a second term to help Americans protect, and seize back, their rights. 

And voters must elect a Democratic Congress to put a stake through federal zombie laws like the Comstock Act before the Supreme Court majority brings them back from the dead.