Let’s say there were (and I’m sure there were) abortion laws on the books before Roe v Wade said abortion was legal
For the sake of argument, let’s say one state had a law that said all abortion is illegal.
Ok Roe v. Wade comes along and overturns that law.
Now let’s say that state never did anything to repeal that law it just sits on the books, but can’t be enforced.
Ok here it is 2006 and let’s say the Supreame Court says “no Roe v. Wade was wrong,” abortion can be illegal. In otherwords the TSCOTUS reverses itself.
Now does this law come back to life? Or is it dead in the water and the state would have to readopt a ban on abortion?
The law is still on the books. The state cannot enforce the law today because any attempt to prosecute under the law would be thrown out, but if the law were deemed constitutional in the future then the state could resume enforcing the law.
Not only will those laws come back to life, but legislatures are working on laws now in anticipation of the overturn of Roe v. Wade, so if Roe v. Wade is overturned, they’ll be prepared (I am not referring to laws that are being drafted in such a way as to be legal even if Roe v. Wade is affirmed, although some lawmakers are working on those, too).
Everyone else seems pretty sure that such laws would spring back to life, but there appears to be at least a modicum of uncertainty surrounding this issue. IANAL, but I am willing to quote from the June 2006 Atlantic Montly article “Life after Roe” by Jeffrey Rosen:
Upon what authority does Rosen rely in stating that there is uncertainty?
For the lawyers among us, a question which would I think help settle this. Is a SCOTUS decision striking down a law legally considered an injunction? If so, is the effect of SCOTUS reversing an earlier precedent the same as the lifting or dissolution of an injunction?
He doesn’t say this, but I interpreted the uncertainty as meaning, more-or-less, “Most legal experts think the anti-abortion laws still on the books would ‘spring back to life.’ But it hasn’t really been tested by the courts yet, so we’ll see.”
Has there been a historical example of a law which was enforced, temporarily “disabled” via SCOTUS decision, and then enforced again after the SCOTUS decision was overturned without legislative active? Maybe some death penalty laws would fit the bill?
I should add also that this point is extremely tangential to Rosen’s article, which is about the potential political effects of Roe being overturned. Perhaps he blew off the research on the precise legal machinations. I know I would have…
When the US Congress repealed the national 55mph speedlimit, speedlimits in Texas reverted to a maximum of 70mph. However, laws that limited trucks to 65mph days and 55mph nights became effective again. Those laws have since been changed and 18-wheelers can blow your doors off again.
This seems an example of an obsolete law coming back to life when an overriding law changed.
