Forty years ago, Democratic Gov. Richard Bryan signed SB510, which required doctors to notify a parent or guardian of an unmarried minor prior to performing an abortion for one. Before the law — which remains in state statutes to this very day — took effect, it was successfully challenged on constitutional grounds in federal court.

Four years ago, the U.S. Supreme Court decided in Dobbs v. Jackson Women’s Health Organization that, contrary to the precedent set in Roe v. Wade, the Constitution no longer confers a right to an abortion and no longer prevents state and local governments from restricting access to abortions.

Now, years after many of those lawmakers who voted in favor of the bill have died, such as Erik Beyer and Bill Raggio, the statutory language of the dead stirs back to life. Federal courts, in response to Dobbs and egged on by rural county district attorneys eager to demonstrate their conservative bona fides by challenging Planned Parenthood, have recently decided that long-ignored laws, such as the aforementioned parental notification law, might be legally enforceable after all.

It’s one thing for enforceable laws to stay on the books for generations. Each generation may witness and consider the effect of such laws on themselves and their communities and make changes where appropriate. If you don’t like the speed limit, for example, you can vote for legislators who promise to change it or you can pass a public referendum to directly change the law.

It’s something else entirely for an unconstitutional law to remain on the books for decades as a ticking time bomb, ready to bite the unwary should courts change their opinions about the statute generations after it was ruled constitutionally unenforceable.

According to the U.S. Census Bureau, fewer than 1 million people lived in Nevada in 1985. Of those, fewer than 300,000 cast a ballot in the 1984 general election. By comparison, nearly 1.5 million people voted in the 2024 general election — and yet it’s the will of that laughably small population of voters in 1985 that is respected 40 years after they originally cast their ballots, not the will of the millions of us who find ourselves unwittingly living under their dusty and stale laws in the present day.

As far as zombie laws are concerned, SB510 is one of the less egregious ones to be resurrected from legal limbo. Nevada’s prohibition on the killing of an “unborn quick child” was originally drafted in 1911, yet it also remains on the books. 

What is an “unborn quick child,” you might ask? Legally, no definition is given. Since “quick” is also not defined in statute, it’s impossible to tell how quick an unborn child needs to potentially or actually be to be legally identified as an “unborn quick child.” Perhaps it's a prohibition against killing the unborn children of Olympic-level sprinters, marathon runners and triathletes. Or perhaps the prohibition merely applies against killing the unborn children of Formula 1 and NASCAR racers. Perhaps the unborn child itself must be quick — maybe legislators were trying to write Newton’s First Law into state statute by declaring that any unborn child in motion must remain in motion.

Who can say? When will we find out the hard way?

Though Nevada’s voters have expressed on several occasions that they support the right to safely receive an abortion — nearly two-thirds of Nevada voters approved a ballot measure allowing for abortions within 24 weeks of pregnancy in 1990 and, in 2024, a similar proportion of voters elected to amend the Nevada Constitution to support an individual’s right to an abortion — laws written more than a century ago to criminalize various aspects of abortion still inflict real and unexpected legal consequences against Nevadans.

For example, a prohibition against taking drugs to terminate a pregnancy was passed in the same measure that banned the killing of an “unborn quick child” in 1911. Since its passage, it has been used to successfully prosecute and convict exactly one person: Patience Frazier, a mother in Winnemucca who experienced a stillbirth after the 20th week of her pregnancy in 2018 — well within Nevada’s statutorily protected 24 week window and more than a century after the prohibition was ratified. Though she was eventually released on appeal, she wasn’t released because the law itself conflicted with Nevada’s statutory or constitutional protections for abortion — instead, she was released because her original lawyer failed to effectively defend her. Consequently, she could still be prosecuted for violating a statute that hasn’t been used successfully in a court of law in 114 years.

Though zombie abortion laws have earned a fair amount of press since Dobbs overturned Roe v. Wade, they’re not the only zombies on Nevada’s books. 

Nevada’s prohibitions against advocating for criminal anarchy and criminal syndicalism, for example, were originally passed in 1967. In 1969, however, the U.S. Supreme Court ruled in Brandenburg v. Ohio that it was a violation of the First Amendment for state and local governments to prohibit the advocacy and teaching of doctrines, such as anarchism and syndicalism, unless their advocacy would incite imminent lawless action. Consequently, the state of Nevada can’t — at least until the Supreme Court changes its mind — prosecute Nevadans for advocating for the overthrow of their government at some indeterminable point in the future through force or violence in the comments section of unmoderated internet forums. Despite their long-standing unconstitutionality, though, the prohibitions remain on the books.

The solution to zombie laws is for the Legislature to overturn them. Doing so on a piecemeal basis, however, incurs unacceptable political costs. Despite Frazier’s conviction, for example, attempts by Democrats in the Legislature to amend the law that was used to convict her went nowhere this year since party leadership decided they wanted a “quiet session” on reproductive rights. SB139, which would have repealed the measure outright, didn’t even receive a committee hearing.

A better solution would be for such laws to automatically remove themselves from state statutes. A recurring cleanup bill each biennium that proposes the removal of all statutes deemed unconstitutional at the state or federal level would be welcome. Additionally, the automatic removal of any statute that criminalizes or penalizes behavior that has not been successfully prosecuted in the past 12 years (the current term limit applied to legislators) would ensure that obscure laws from more than a century ago wouldn’t be used by overly creative prosecutors in the present day.

Should any still have merit, the Legislature could amend the cleanup bill to ensure those laws remain each biennium or it could reintroduce the law at a later date. Either way, the voters and their representatives would have to explicitly and transparently choose to keep such laws on the books.

Each zombie law may or may not have merit today. The way to determine that, however, is not by resurrecting them through judicial fiat decades after the dead letters of the statutes were originally written. Instead, Nevada’s voters should be given the chance to affirmatively consent to such laws once they are enforceable.

David Colborne ran for public office twice. He is now an IT manager, the father of two sons, and a recurring opinion columnist for The Nevada Independent. You can follow him on Mastodon @[email protected], on Bluesky @davidcolborne.bsky.social, on Threads @davidcolbornenv or email him at [email protected]. You can also message him on Signal at dcolborne.64.