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abortion rights

Democracy

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.

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.'

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.

Democracy

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.

Democracy

Patagonia says it will pay bail for employees arrested in abortion rights protests

A powerful statement from one of our nation's most trusted brands.

Everyone loves someone who had an abortion and other prote… | Flickr

In today's economy, people who work are demanding more accountability from their employers: better wages, benefits, transparency and alignment on values. The emphasis on shared values is coming to the forefront in the wake of the Supreme Court's decision to overturn Roe v. Wade, which removes federal protections for abortion. States, local governments and individuals are scrambling to react to the decision, which tosses out 50 years of legal precedence.

While the nation sorts out the politics and future legal decisions surrounding reproductive health, some companies are getting ahead of the issue by coming out publicly to support abortion rights, commonly referred to as "reproductive justice" by activists and advocates of a woman's right to choose. One of the most outspoken companies is Patagonia, which announced in the wake of the Supreme Court decision that it will not only financially support individuals who choose to have an abortion but it will provide funds to pay the bail for individuals who face legal expenses while protesting for reproductive justice.


In a statement on Patagonia's LinkedIn page, the company writes:

"Caring for employees extends beyond basic health insurance, so we take a more holistic approach to coverage and support overall wellness to which every human has a right. That means offering employees the dignity of access to reproductive health care. It means supporting employees’ choices around if or when they have a child. It means giving parents the resources they need to work and raise children."

As part of that commitment, Patagonia announced that all U.S. employees are covered for abortion care as part of their healthcare coverage. "Where restrictions exist, travel, lodging and food are covered." This includes 100% of copay costs for mental health visits.

Importantly, Patagonia showed why reproductive rights and healthcare are truly a holistic matter. In the same statement, Patagonia listed how it also supports those individuals and families who choose to have children, writing:

We support new parents with:

  • Two types of paid leave: 4 weeks of paid pregnancy disability leave and/or 12 weeks of paid parental bonding leave.
  • Private spaces to feed infants.
  • Child-care support for parents on work trips.
  • Subsidized, on-site high-quality child care.
  • Child-care stipends for parents who do not live near one of our child-care centers.

But it was a political component of Patagonia's message that went viral, with the company stating that all part-time and full-time employees will receive:

  • Training and bail for those who peacefully protest for reproductive justice.
  • Resources to make informed decisions at the ballot box.
  • Time off to vote.
Educational voting resources and time off to vote simply should not be a political issue. Our democracy and our politics would be stronger with greater participation and understanding of how our government works. It's a principle that proves values regardless of where one falls on the political spectrum. If you want to advocate and vote for greater public financial assistance, it's obviously helpful to know which programs need more help and how to speak to that. Likewise, if you are a critic of government waste and believe certain issues are better handled in the private sector, participating as an informed voter helps your cause.

But it's the willingness of Patagonia to provide financial cover for its employees who peacefully protest in favor of reproductive justice that truly makes the company stand out. How many companies are willing to go that extra mile to empower their companies to be good citizens, not just good employees?

As a company here at Upworthy, we've always been proud of the work Patagonia does to protect our planet from the threat of climate change. Putting principles first is a great way for a company such as Patagonia to show that it not only makes a great product but that it uses the goodwill and trust its brand has created to help make the world a better place for everyone. We'd all like to see a world where those principles are restored to the highest order within the halls of our government, where elected officials do the work of the people for the people. But until we achieve that more perfect union, it's important to know that where we spent our money outside of politics can go a long way toward protecting the values we cherish.