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What to know about the 1864 abortion ban Arizona's Supreme Court says is 'now enforceable'

The legal code it comes from also outlaws interracial marriage and forbids minorities from testifying against white people in court.

Peter Zillmann (HPZ)/Wikimedia Commons, Brandon Friedman/Twitter

Arizona's borders may soon be even more consequential.

When the 2022 Dobbs decision overturned the federal protection of medical privacy in reproductive decisions, leaving abortion law up to the states, experts warned of the legal and medical consequences to come: People in states with old laws on the books would find themselves facing abortion restrictions the likes of which had not been seen in over 50 years since Roe vs. Wade became "settled as a precedent of the Supreme Court," and medical providers would face legal conundrums that threatened patient care.

Nearly two years later, we've seen the fallout on multiple fronts, from women suing states for denying them medically necessary care to children who have been raped and impregnated being forced to travel across state lines to get an abortion.

And the latest development has Arizona set to enact a near-total abortion ban based on a 1864 legal code, after the Arizona Supreme Court ruled that the law "it is now enforceable."

Here's what to know about the 160-year-old law:

There is only one abortion exception allowed for in the law—to save the life of the mother. As medical providers have made clear, that kind of exception is a murky gray area that leads to impossible questions like "How imminent does a mother's death need to be?" for a doctor to take action without fearing legal repercussions.

Civil War-era historian Heather Cox Richardson shared some of the details about how the law came about and the context in which it was written on Facebook, and the historical facts paint a picture of how utterly absurd it is for the law to go into effect in 2024.

"In 1864, Arizona was not a state, women and minorities could not vote, and doctors were still sewing up wounds with horsehair and storing their unwashed medical instruments in velvet-lined cases," wrote Richardson. She pointed out that the U.S. was in the midst of the Civil War, and that the law didn't actually have much to do with women and reproductive care.

"The laws for Arizona Territory, chaotic and still at war in 1864, appear to reflect the need to rein in a lawless population of men," she explained, sharing that the word "miscarriage" was used in the criminal code to describe various forms of harm against another person, specifying dueling with, maiming and poisoning other people.

Richardson offered that detail as the context in which the law states that "a person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years."

How did the law even come about? At that time, the newly formed Arizona Territorial Legislature was composed of 27 men. The first thing they did was authorize the governor to appoint a commissioner to draft a code of laws, but a judge named William T. Howell had already written one up. After some discussion, the legislators enacted Howell's laws, known as "The Howell Code."

The code included laws like, "No black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to give evidence in favor of or against any white person," as well as "All marriages of white persons with negroes or mulattoes are declared to be illegal and void."

Richardson also pointed out that the code set the age of consent for sexual intercourse at 10-years-old.

Essentially, a law written by one man, 48 years before Arizona was officially a state, over half a century before women were allowed to vote, when it was perfectly legal to enact and enforce racist laws and see 10-year-olds as old enough to consent to sex, is now considered "enforceable" by the Arizona Supreme Court.

As Richardson pointed out, the difference now is that women can vote. And Americans have proven time and again that draconian abortion laws are wildly unpopular across the political spectrum. Even some Republican lawmakers and politicians are flip-flopping on previous praise for the 1864 law, saying that the Arizona legislature needs to do something about the law to prevent it from taking effect.

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Teen who was publicly body shamed by Matt Gaetz helps raise $168,000 for abortion funds

This is how you respond to a bully.

Photo by Gayatri Malhotra on Unsplash

Not Your Body, Not Your Choice.

Sometimes things are said unintentionally that can hurt feelings or cause harm but sometimes things are intended to do just that.

At the Turning Point USA Student Action Summit in Tampa, Florida, congressman Matt Gaetz made comments that essentially body shamed an entire demographic of people. His comments didn't go unnoticed as they made the rounds of social media. Olivia Julianna, 19, decided to make a witty response to his remarks on Twitter before Gaetz took her profile picture and shared it in what appears to be an effort to shame the teen's appearance.

Now, no one can fully say whether Gaetz intended to cause harm with his speech or his tweet until he decides to clarify his reasoning. But it sure seems Julianna's sassy response ruffled his feathers a bit. The teen made it clear that she would not tolerate body shaming by writing, "Its come to my attention that Matt Gaetz — alleged pedophile — has said that it’s always the ‘odious... 5’2 350 pound’ women that ‘nobody wants to impregnate’ who rally for abortion,” the tweet read. “I’m actually 5’11. 6’4 in heels. I wear them so the small men like you are reminded of your place.”

Gaetz is currently being federally investigated for sex trafficking. The congressman denies these claims and has currently not been charged with a crime.

Julianna let the world know in no uncertain terms that type of behavior wasn't OK. Given Gaetz's original comments about abortion rights activists looking "like a thumb" and saying, "they're like 5'2", 350 pounds," it's no surprise he came right back at the teen by sharing her profile picture to his 1.6 million followers. He captioned the picture with, "Dander raised," which according to Merriam-Webster means "to become angry."

The exchange didn't end there. Instead of backing down after the politician publicly exposed her photo to more than a million people, Julianna saw an opportunity. After the quick tiff, the teen used the increased attention to fundraise for the Gen-Z for Choice Fund, which distributes money to 50 different abortion funds across America. Julianna told Today that tweeting about the fund, which included a link, has since raised $168,000. She told Today, "I wanted to highlight the positive work that I'm doing from this very negative sphere that I've been placed in."

Congressman Gaetz seems to be going out of his way to make others upset. Even Mike Pence's chief of staff, Marc Short, came out swinging, metaphorically of course in an unexpectedly strong statement on CNN. In the clip he implies that Gaetz will be unable to vote in the election due to him being incarcerated by the time November rolls around.

Julianna is the one coming out on top in this situation by using it to fundraise for a cause that is important to millions of people. I'm not sure what the future holds for this teen but something tells me she's someone we should be on the look out for in the future. She's a force.

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Democracy

American Medical Association president explains how abortion laws are already causing harm

'These decisions turn out to be quite complicated in a lot of instances.'

Photo by Gayatri Malhotra on Unsplash

Abortion is a part of reproductive healthcare.

The Supreme Court decision to overturn Roe v. Wade has created a ripple effect of confusion and frustration in the medical field as doctors struggle to navigate the nuances of providing lifesaving care to patients under new state laws prohibiting abortion.

Who would have guessed that legislators criminalizing reproductive medicine—especially when they have no medical training or expertise in what can impact a pregnancy—could backfire? Who would have thought that politicians making decisions about what healthcare a person can and can't receive could lead to increased risks for patients?

Dr. Jack Resneck Jr., the president of the American Medical Association (AMA), knows more than the vast majority of us about why medical care should be left to medical professionals and the harm that stringent abortion laws can lead to.

"These decisions turn out to be quite complicated in a lot of instances," Resneck told journalist Chris Hayes. "So trying to make hard and fast rules in legislative bodies that apply the same across the board is just incredibly dangerous for patients."

Since the enactment of trigger laws in several states after the Supreme Court ruling, we've seen story after story of vital healthcare being denied for patients, from prescription medicines for rheumatoid arthritis to potentially lifesaving interventions in pregnancies gone wrong. Doctors are unclear on what they can and can't do, and the criminalization of care that could fall under the abortion umbrella has created a stressful situation for doctors who end up stuck between providing the best evidence-based care and risking jail time or losing their career.

Resneck provided testimony on behalf of the AMA to the House Committee on Energy and Commerce Subcommittee on Oversight and Investigations as part of a hearing entitled “Roe Reversal: The Impacts of Taking Away the Constitutional Right to an Abortion.” In his statement, he explained how abortion laws put both doctors and patients in a dangerous position.

“The recent Dobbs decision overturned nearly a half century of precedent, ending patients’ rights to comprehensive reproductive health care, allowing government intrusion into the medical exam room, and criminalizing medical care," Dr. Resneck said in his statement. "And, now, physicians in many states are reporting chaos and confusion. Physicians have been placed in an impossible situation, trying to meet their ethical duties to place patients’ health and well-being first, while attempting to comply with vague, restrictive, complex, and conflicting state laws that interfere in the practice of medicine and jeopardize the health of our patients. Physicians are worried about prosecution of their patients and themselves in the midst of significant legal uncertainty and this is dangerous for our patients."

Resneck shared that the Dobbs decision is already limiting people's access to medications that treat chronic disease and explained how it will "worsen existing gaps in health disparities and outcomes, compounding the harm that under-resourced communities already experience."

"States that end legal abortion will not end abortion, they will end safe abortion, risking devastating consequences, including patients’ lives," he added.

Resneck wrote that the association has “only begun to assess the full impact of the Dobbs decision on our physicians and their patients," and that at this point there are "more questions than answers." However, he reiterated the AMA's commitment to opposing the criminalization of medical practice and challenging criminal or civil penalites on patients or health professionals who find themselves legally at risk from reproductive healthcare.

If the associations of our nation's top medical professionals—not just at the AMA, but also those that specialize in pregnancy and birth, such as the American College of Obstetricians and Gynecologists, the American College of Nurse-Midwives, the Association of Women’s Health, Obstetric and Neonatal Nurses and more—oppose abortion legislation, we should listen to them. They're the ones who have dedicated their lives to pregnancy-related medical care. They're the ones who understand the medical implications of this ruling and the laws that it triggered. They're the ones who should have a say in patient care, not government officials with no expertise in medical research or practice.

The state governments that are banning abortion are egregiously overstepping. No one but a doctor and the person experiencing the pregnancy should have any say in their healthcare, period.

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Appalachian mom's speech on Kentucky's proposed abortion ban is a must-hear for everyone

Danielle Kirk is speaking up for those often overlooked in our cultural debates.

Canva, courtesy of Danielle Kirk

Appalachian mom gives passionate speech.

Many people felt a gut punch when the Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization, which overturned the decades-old Roe v. Wade decision that protected a woman's right to an abortion. However, for some this was a call to action.

Danielle Kirk, 27, a mom of two and an activist on TikTok, used her voice in an attempt to educate the people that make decisions in her small town. Kirk lives in Kentucky where a trigger law came into effect immediately after Roe v. Wade was overturned. Being a former foster child, she knew she had to say something. Kirk spoke exclusively with Upworthy about why she decided to speak up.

Kirk hadn't planned to speak at the Pikeville rally, a protest against Kentucky's Human Life Protection Act, triggered in the wake of the Supreme Court ruling. But when the organizers asked for speakers, she felt compelled to make her way to the podium. “I felt like what I had to say had not been said before, coming from someone that had been in the system," Kirk explained. "There's so much of a gray area when it comes to this issue and they're trying to make it black and white. The law in Kentucky does not give way to people that I know."

She further explained that the wording of the act is so unclear that doctors she knows personally are afraid because there's no clear distinction on what is considered a great enough threat to the mother's life, which is the only exception given in the state's law.

@daniellekirk731

I didnt plan on speaking today, but something told me to. For so long our voices have been silenced into sumbission. No more. Its time for us to all band together, create the support systems we need HERE, turn our tears and anger into outreach. If they want to pass this back to the states, let your state representives & congressmen know that they work for us, if they cant, we’re coming for their jobs!!!! @appalachian_nana thanks for sending me this video

Kirk asked the question, "Do I have to be on my death bed to have an abortion?"

Appalachia is an expansive territory that spans 13 states, including Pennsylvania, West Virginia, Kentucky and Mississippi. Of those 13 states, five have trigger laws and four others are either fighting in court to enact bans on abortion or plan to call a special session to enact a ban. In the state of Kentucky, where Kirk lives, the trigger law does not allow for any exceptions for rape or incest, even if the victim is a child.

Kirk has two small daughters and is a victim of childhood sexual abuse herself, which gives her a unique perspective on why this extreme ban is harmful. She was raised by her biological mother for only a short period of time before her mother's death, and she spent time in and out of the foster care system where she experienced sexual abuse. Being born and raised in rural Appalachia, first West Virginia, then Kentucky, Kirk understands what this ban would mean for the people in her small town and other towns like hers across the country.

At 15.2% of the population, Appalachia has some of the highest poverty rates in the country. According to the U.S. Census Bureau, the 2020 national average poverty rate was 11.4%. Resources for people living in Appalachian areas are scarce due to the remote locations that most of the population lives in. Most rural areas don’t have public transportation or Uber to take them places. There are regions in Appalachia that don’t even have internet access. So being able to get appropriate medical care when pregnant can be a challenge for those living in the region.

Poverty doesn’t only stop at transportation, the area's residents are also challenged in terms of employment as well as access to grocery stores, clean water or even running water. It's a population that is struggling to survive on limited resources.

@daniellekirk731

I understand a lot of people have been warning of this, & they didn’t listen in the past. But young voters here are tired & ready to fight. #Kentucky #606 #OrganizeAppalachia

Which is why Kirk’s speech is what government officials need to hear. It’s also what people who are supporting the abortion ban need to hear. Because sometimes, speaking the truth of your personal experiences is the only way to change the minds of neighbors and politicians. And things can seem far removed when you don’t personally know someone affected by larger decisions.

During our interview, Kirk expressed hope that the trigger law could be halted. In fact, on June 30, a Louisville Circuit Court Judge issued a temporary restraining order to block the state's abortion ban. This means abortions can continue in the state, for now.

Kirk said she feels it's important for people to see someone that talks like her taking a stance against something that is supposed to be popular in a conservative state like Kentucky. "People have been silenced into submission," she said. She hopes that others might be inspired to speak up and even become motivated to run for local or state office—something she is considering for when her children are a bit older.

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