The Civil War raged and fortune-seekers hunted for gold. This era produced Arizona’s abortion ban

WASHINGTON — As the Union and Confederacy armies clashed in a bloody fourth year of the Civil War, President Abraham Lincoln tasked one man with drafting the legal code for Arizona, nearly fifty years before the territory became a state .

New York Judge William Thompson Howell wrote 500 pages of provisions on dueling, accidental ax killings and age of consent that would govern the newly formed territory of fewer than 7,000 people. But tucked into the ‘Howell Code’, just after the section on dueling, was an abortion law that criminalized the administration of ‘any medicinal substance… with the intent to cause the miscarriage of any woman then pregnant’.

That was 160 years ago. Last week, that same 1864 provision was revived by the Arizona Supreme Court, which upheld a near-total ban on abortion, with no exceptions for rape or incest, a decision that quickly rippled across the political landscape of one of the nation’s most important presidential battlegrounds. country moved. states.

The revival of this law is just the latest example of long-dormant restrictions affecting current abortion policy after the overturning of Roe v. Wade, which once granted a federal right to abortion.

“This is just one more example of a centuries-old zombie law coming back to life,” said Jessica Arons, senior policy adviser at the American Civil Liberties Union. “This is what the U.S. Supreme Court set the stage for when Roe fell.”

In the 1860s, Arizona settlers faced what was then widely perceived as a remote and dangerous landscape. Settlers clashed with Apache tribes as they pushed into the region. And miners had only just begun to discover the gold and silver that would attract large numbers of fortune seekers in the decades to come.

The 1864 Arizona law spells out detailed restrictions on dueling, providing that any person involved in fighting a duel will be sentenced to one to three years in prison, and imposing penalties for “chaos” for those who “unlawfully cutting off or disabling the tongue, an eye, severing the nose, ear, or lip, or disabling a limb or member of another.

Howell’s code includes exceptions for murder, such as when “a man is working with an axe, and the head flies off and kills a bystander, or when a parent moderately corrects his child… and happens to result in death.” The code also appears to set the age of consent at 10 years, proclaiming: “Any person fourteen years of age and above, who shall have carnal knowledge of any female child under the age of ten years, with or without her consent. , will be found guilty of the crime of rape.”

Meanwhile, William Claude Jones, who served as Speaker of Arizona’s 1st Territorial Legislative Assembly in 1864, was described by one biographer as a “pursuer of marriageable women” and was married throughout his life to a 12-year-old, a 15-year-old and a 14-year-old, according to a 1990 biography in the Journal of Arizona History.

“That’s where this abortion law comes from,” said Prof. Barbara Atwood, a law professor at the University of Arizona Law School. “The code reads like you’re going back to this time of this barbaric, wild west.”

The Civil War-era law is now likely to become one of the strictest abortion bans in the entire country, a dynamic that is already shaping the battle for president and the U.S. Senate. Attorney General Kris Mayes denounced the decision, noting that it came from an era when women even had the right to vote.

She said the court’s ruling “will go down in history as a stain on our state.”

Similar words came from the White House, as President Joe Biden called it a “cruel ban” resurrected from history.

Some Republicans in Arizona also criticized the ruling, albeit in more muted language. Republican Senator TJ Shope called it “disappointing.”

While many states repealed their pre-Roe abortion laws following the 1973 Supreme Court ruling that granted a constitutional right to abortion, about a dozen states, including Arizona, kept their laws on the books. These laws were often called “trigger laws” because the overthrow of Roe would trigger them.

Several legal experts said Arizona’s law is likely the state’s oldest abortion ban that will now be upheld. But century-old abortion restrictions passed by all-male legislators during periods when women could not vote and scientific knowledge about pregnancy and abortion was limited have influenced post-Roe abortion policies in Alabama, Arkansas, Michigan, Mississippi, Oklahoma, Texas. West Virginia and Wisconsin.

The laws are often stricter. They often do not include exceptions for rape and incest, call for prison sentences for health care providers and ban the procedure during the first few weeks of pregnancy. Some have since been withdrawn, while others are being challenged in court.

“These age-old laws truly have a tangible impact on women’s lives today,” said Jessie Hill, a law professor at Case Western Reserve University School of Law in Cleveland. “And they really contributed to the post-Dobbs uncertainty across America.” The 2022 U.S. Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization overturned Roe.

In Michigan, a 1931 law would have criminalized abortion except when a woman’s life was in danger. But Michigan voters overwhelmingly voted in 2022 to enshrine abortion rights in the state’s constitution, and earlier that year a judge ruled that the 93-year-old law was unconstitutional. The law was formally repealed by a 2023 statute.

“New Mexico and Michigan realized the threat of these zombie laws and took action,” said the ACLU’s Arons. “In Michigan, it was a major driver in pursuing a constitutional amendment enshrining abortion rights.”

An 1849 abortion ban is now at the center of a lawsuit in Wisconsin that is expected to make its way to the state Supreme Court, which has a new liberal majority. In other states, such as Mississippi, Oklahoma and Texas, newer abortion laws are layered on top of older restrictions still on the books.

Abortion rights advocates also warn of another 19th century law called the Comstock Act that could have national ramifications. It has been revived by anti-abortion groups who want to use it to block shipments of the abortion pill mifepristone across the country. Medication abortions account for the majority of abortions in the US

Originally passed in 1873, the Comstock Act was intended to ban the shipment of contraceptives, “lewd” writings, and any “instrument, substance, drug, medicine, or thing” that might be used in an abortion, although its scope is limited by federal courts and Congress.

Mary Ruth Ziegler, a law professor at the University of California, Davis School of Law, said anti-abortion groups are pressuring presidential candidates to use the law to block most abortions nationwide, even in states where it is currently legal is by blocking the mailing. of any medications or equipment needed for abortions.

“The Comstock Act means that what happened in Arizona is possible for all of us across the country,” Ziegler said.

There are also long-dormant laws in many states regarding contraception and same-sex marriage that have not yet been revived, she added.

“This is just a reminder that on-the-books laws that may seem irrelevant and outdated can come back and be enforced,” she said.

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