The Washington PostDemocracy Dies in Darkness

States may revive abortion laws from a time when women couldn’t vote

A group of women mill workers in 1908. (Lewis Hine/Library of Congress)
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When Roe v. Wade was decided in 1973, it invalidated antiabortion 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.

Abortion is now banned in these states. See where laws have changed.

But a few states did nothing at all, and now confusion reigns about whether the old laws are kicking in again.

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.

Arizona is one of several Republican-controlled states that is pointing to a century-old law as the rationale to roll back access to abortions. (Video: Julie Yoon, Joshua Carroll/The Washington Post)

In Michigan, Gov. Gretchen Whitmer (D) 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.

She survived a forced sterilization. Activists fear more could occur post-Roe.

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. Some enslaved people brought recipes for abortion-inducing drinks with them from Africa, but access to these would have been inconsistent at best.

Even the most privileged women in what would become West Virginia had few rights. Rebecca Harding Davis was a White woman born into an upper-middle-class family and educated by tutors and private schools. She embarked on a career as a journalist and novelist. Her breakout work, “Life in the Iron Mills,” detailed the plight of immigrants in the mills and mines around her. But she forfeited some of her rights when she married, since Virginia denied married women any property rights, with one legislator arguing that a woman having such a right would destroy the entire institution of marriage.

Wisconsin was a progressive state since its beginning, at least relative to the others. In the 1840s, when it passed its abortion law, its lawmakers took the radical step of considering giving women the right to vote in the state Constitution, before deciding against it, according to the Office of Gender and Women’s Studies at the University of Wisconsin. As one local newspaper editorial put it soon afterward, “Women are confessedly angels, and angels don’t vote.”

Married women in Wisconsin were given some property rights in 1850, though they were still barred from writing their own wills or controlling their wages. The University of Wisconsin, which was founded in 1848, the same year as the state, let women enroll as early as 1863, though it was largely a business move to boost enrollment during the Civil War. Even then, female students could only study teaching.

When divorce was widely banned, desperate women went to South Dakota

Few Black women lived in Wisconsin, though it was a free state and many White residents were involved in abolition and the Underground Railroad. For Indigenous women, though, there was almost no freedom of movement. For years, settlers and traders had been sexually exploiting them and pushing them off their lands, according to the Wisconsin Historical Society. In 1850, the federal government lured thousands of Indigenous people from Wisconsin to Minnesota, including Julia Spears, an 18-year-old Ojibwe woman. She later described watching hundreds of adults and children die of starvation and disease in what is now called the Sandy Lake Tragedy.

Arizona was still a territory when it passed its abortion law in 1901, but the fight for women’s suffrage was in full swing. Bills to give women the vote in 1883 and 1891 had failed. Two other bills passed but were vetoed by governors. A narrower law, which gave taxpaying mothers of school-age children the right to vote in school board elections, was struck down in court. At Arizona’s 1911 constitutional convention to become a state, women’s suffrage failed again.

Frances W. Munds of Prescott was there for all of it. She was already a member of suffrage organizations when she married a cattle rancher in 1890. She was a mother to young children as she climbed the ranks in these organizations, where she pushed to include Mormon women in the movement. Finally, after she campaigned for a ballot initiative, women in Arizona got the right to vote in 1912, eight years before the 19th Amendment. When she was elected to the state Senate two years later, local newspapers called her “Mrs. J.L. Munds” — her husband’s name, a common practice for newspapers nationwide.

It would be decades until Indigenous and Hispanic women in Arizona could vote.

Though Black women got the right to vote with the passage of the 19th Amendment in 1920, many were still unable to exercise that right. In 1931 — the year Michigan passed its abortion law — Detroit preacher’s wife Fannie B. Peck was focused on a different type of voting: voting with your dollars.

Peck started the Housewives’ League of Detroit in 1930 to encourage Black women to shop only at Black-owned businesses and businesses that hired Black employees. Their motto was “Don’t buy where you can’t work” — but that was somewhat symbolic, given that only 22 percent of women were in the labor force nationwide at the time, according to census data.

Michigan women also couldn’t open their own bank accounts. In 1932, as a Great Depression-era federal measure, employed women were forced to quit their jobs if their husbands were also employed.

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).

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