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.
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.
