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reproductive 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.

Photo by Manny Becerra on Unsplash

Roe v. Wade guaranteed the right to privacy in our medical decisions.

The Supreme Court has issued its ruling on Dobbs v. Jackson, a decision that we knew was coming and that overturns 50 years of precedent in the 1973 Roe v. Wade decision.

Roe v. Wade is widely known for upholding the right to an abortion, but it also upheld an individual's fundamental "right to privacy" (in the Due Process Clause of the 14th Amendment of the Constitution). In a 7-2 opinion (written by a lifelong Republican justice, for what it's worth), the Supreme Court decided that the right to privacy and liberty covered the right to abortion.

In the decades since Roe, people have rehashed all kinds of questions surrounding abortion: the nature of life and personhood, bodily autonomy, the rights of the unborn and more. And in those debates, we've lost the core of what the Roe ruling was really about—the right to privacy in our medical decisions, which affects each and every one of us.

The one question we should be asking, fellow Americans, is this:


Should the government have the authority to access someone's private medical and sexual history to investigate, judge, intervene in and/or prosecute their healthcare decisions?

That's the question. That's the debate. And I don't know anyone in their right mind who would answer that question with "yes."


In the Dobbs opinion, Justice Alito wrote, "It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives." Is it, though? Is government overreach just fine and dandy at the state level? Should elected representatives really be given the authority to determine people's medical needs? I don't think so.

Make no mistake—abortion is sometimes medically necessary to save the life of a mother or prevent undue suffering of an unborn baby. If it's sometimes necessary and the law acknowledges and allows for that, then the law would have to make the determination of whether or not it's necessary in each and every case. Not doctors, not the person carrying the baby, but representatives of the law. Investigators would have to delve into the personal, private medical records of patients to decide if an abortion was legitimate or not.

Who really wants that kind of government interference in their healthcare decisions?

If there are exceptions in state abortion laws for rape or incest, now we're looking at investigations not only into someone's medical records, but also into someone's sexual history. After all, anyone can claim they were victims of rape or incest. Such allegations are notoriously difficult to prove, so now we get 1) a slew of false accusations by women desperate to be able to get an abortion, which harms both real victims and innocent men, and 2) even more invasive investigations by the government into extremely private and painful matters.

I don't personally need a right to an abortion at this point in my life. There is almost no chance I will ever get pregnant again, and I can't imagine having an abortion even if I did. I do, however, need a right to privacy in my own medical care. That's what's being lost here.

I also don't begrudge anyone their belief that abortion is always wrong. I can actually understand how people get there, though I disagree. So by all means, debate the ins and outs and rights and wrongs of abortion all you want. Go out and hold up signs and preach to the masses and try to convince people to make different decisions. Set up pregnancy support clinics. Educate people about birth control or abstinence or whatever you believe is moral and right.

But allowing the government to legislate it is wrong. After all, the question of when life begins is fundamentally a religious or philosophical question, and we live in a country where we do not establish a religion. (It's literally in the first line of the First Amendment of the Constitution. And besides that, abortion access is a religious requirement in some faiths, so religious arguments for and against access are moot, legally speaking.)

We don't live in a black-and-white world. Every single pregnancy is a unique situation with a million different variables. Speaking in generalities is simple, but individual cases are nuanced and complex. Should the 11-year-old who has been raped and impregnated by her brother be forced to carry and bear his child when her own body hasn't even reached full maturity? Should the mother whose water broke prior to viability and who has a life-threatening infection, necessitating an abortion to save her life, now have to go through a painful investigative process to determine whether she's a criminal under the law? Should a pro-life Congressman with means be able to access abortion for the mistress he impregnated because he can afford it, all while trying to remove access for the rest of us?

You could say those are exceptions, but who makes that determination? Who gets to say what counts as an exception or not? Who gets to decide the criteria and determine who meets that criteria? Politicians most of us wouldn't trust to watch our dog? Is that really what we want from our government?

And what about the notion that abortion bans save lives? Do the lives of pregnant women not count? Not only will people risk their lives seeking dangerous unregulated abortions, but we could also see an increase in suicides in women who feel trapped in an impossible situation. In El Salvador, where abortion is banned with no exceptions, 3 out of 8 maternal deaths—more than one-third of mothers who die—are pregnant teens who die by suicide. Please read that twice.

The U.S. also has the highest maternal mortality rate among developed nations. And Texas specifically, where some of the most stringent abortion laws are being enacted, topped the developed world for maternal mortality as of 2014. Pregnancy and childbirth are not without risk, especially in this country.

But none of that, sadly, is even relevant to the central question:

Should the government be granted the authority to dive into someone's private medical and sexual history to investigate, judge, intervene in and/or prosecute their healthcare decisions?

Or more specifically:

Should the government—the random fellow citizens we elect on occasion—be granted the authority to access someone's personal medical and sexual history to determine the circumstances of a pregnancy and judge whether the healthcare decisions surrounding it are valid?

The answer is no. Obviously, no.

At this point in my life, I don't need the right to an abortion. But I do need the right to privacy in my personal healthcare decisions. We all do. That's what Roe guaranteed. That's what we have lost.

Canva

We live in a world where men, who have never and will never experience pregnancy or childbirth, make laws about women's reproduction, which in and of itself is a headscratcher. When we're talking about anti-abortion legislation, which effectively forces women to go through pregnancy and childbirth whether it's healthy for them or not, it seems like the people who actually experience those things should have a more heavily weighted say in such legislation.

Of course, women have varied opinions on the matter. (The most recent Gallup poll found that 53% of women in the U.S. identify as "pro-choice" and 43% identify as "pro-life.") But interestingly, a Twitter thread is showing how actual experience can either shift or concretes a person's views.

Writer Jennifer Wright wrote, "Raise your hand if pregnancy and childbirth only made you *more* pro-choice," and the responses came flooding in.


Scores of women responded in the affirmative, saying that going through pregnancy, childbirth, and childrearing has either made them change their stance from anti-choice to pro-choice or solidified their pro-choice beliefs.

For some, it was getting a first-hand taste of the potential dangers pregnancy poses.


For others, their experiences with adoption solidified their pro-choice stance.



Some shared that losing a baby or nearly losing a baby helped them realize the complexities of choices surrounding pregnancy and childbirth.



Many women shared that going through pregnancy and childbirth made them realize that forcing someone who doesn't want to be pregnant or birth a child to do so is cruel.



Even those who enjoyed being pregnant or who had loads of support shared that the experience pushed them toward choice.


Experience can be eye-opening.

Even experiences that someone might guess would lead to different views.


A few men even weighed in, saying that their experience just witnessing their wives' pregnancy and childbirth difficulties made them see that no one should be forced through it against their will.


So many stories, so many reasons to believe in giving women autonomy over their own medical decisions.





Scrolling through the hundreds of comments in the thread, the consensus was clear.

Pregnancy and childbirth are difficult and dangerous, with lifelong consequences, even when you want a child. Adoption is not the panacea people make it out to be. Struggling through infertility and multiple miscarriages can make women more understanding of how complicated reproductive choices are. And the idea of the government forcing a woman to stay pregnant and deliver a baby no matter the circumstances feels wrong when you know exactly what that can mean for her.

Let's leave personal medical choices that don't affect others to patients and their providers, period.