April 9, 2024
Yesterday, former president Trump released a video celebrating state control over abortion; today, a judicial decision in Arizona illuminated just what such state control means. With the federal recognition of the constitutional right to abortion gone since the Supreme Court overturned Roe v. Wade, old laws left on state books once again are becoming the law of the land.
In a 4–2 decision, the all-Republican Arizona Supreme Court today said it would not interfere with the authority of the state legislature to write abortion policy, letting the state revert to an 1864 law that bans abortion unless the mother’s life is in danger. “[P]hysicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” the decision read.
The court explained: “A policy matter of this gravity must ultimately be resolved by our citizens through the legislature or the initiative process…. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens.”
The idea that abortion law must be controlled by state legislatures is in keeping with the 2022 Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade. But it’s an interesting spin to say that the new policy is protecting the will of the citizens.
The Arizona law that will begin to be enforced in 14 days was written by a single man in 1864.
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.
And, of course, the United States was in the midst of the Civil War.
In fact, the 1864 law soon to be in force again in Arizona to control women’s reproductive rights in the twenty-first century does not appear particularly concerned with women handling their own reproductive care in the nineteenth—it actually seems to ignore that practice entirely. 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.
The 1864 Arizona criminal code talks about “miscarriage” in the context of other male misbehavior. It focuses at great length on dueling, for example—making illegal not only the act of dueling (punishable by three years in jail) but also having anything to do with a duel. And then, in the section that became the law now resurrected in Arizona, the law takes on the issue of poisoning.
In that context, the context of punishing those who secretly administer poison to kill someone, it says that anyone who uses poison or instruments “with the intention to procure the miscarriage of any woman then being with child” would face two to five years in jail, “Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.”
The next section warns against cutting out tongues or eyes, slitting noses or lips, or “rendering…useless” someone’s arm or leg.
The law that Arizona will use to outlaw abortion care seemed designed to keep men in the chaos of the Civil War from inflicting damage on others—including pregnant women—rather than to police women’s reproductive care, which women largely handled on their own or through the help of doctors who used drugs and instruments to remove what they called dangerous blockages of women’s natural cycles in the four to five months before fetal movement became obvious.
Written to police the behavior of men, the code tells a larger story about power and control.
The Arizona Territorial Legislature in 1864 had 18 men in the lower House of Representatives and 9 men in the upper house, the Council, for a total of 27 men. They met on September 26, 1864, in Prescott. The session ended about six weeks later, on November 10.
The very first thing the legislators did was to authorize the governor to appoint a commissioner to prepare a code of laws for the territory. But William T. Howell, a judge who had arrived in the territory the previous December, had already written one, which the legislature promptly accepted as a blueprint.
Although they did discuss his laws, the members later thanked Judge Howell for “preparing his excellent and able Code of Laws” and, as a mark of their appreciation, provided that the laws would officially be called “The Howell Code.” (They also paid him a handsome $2,500, which was equivalent to at least three years’ salary for a workingman in that era.) Judge Howell wrote the territory’s criminal code essentially single-handedly.
The second thing the legislature did was to give a member of the House of Representatives a divorce from his wife.
Then they established a county road near Prescott.
Then they gave a local army surgeon a divorce from his wife.
In a total of 40 laws, the legislature incorporated a number of road companies, railway companies, ferry companies, and mining companies. They appropriated money for schools and incorporated the Arizona Historical Society.
These 27 men constructed a body of laws to bring order to the territory and to jump-start development. But their vision for the territory was a very particular one.
The legislature provided that “[n]o black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to [testify in court] against any white person,” thus making it impossible for them to protect their property, their families, or themselves from their white neighbors. It declared that “all marriages between a white person and a [Black person], shall…be absolutely void.”
And it defined the age of consent for sexual intercourse to be just ten years old (even if a younger child had “consented”).
So, in 1864, a legislature of 27 white men created a body of laws that discriminated against Black people and people of color and considered girls as young as ten able to consent to sex, and they adopted a body of criminal laws written by one single man.
And in 2024, one of those laws is back in force in Arizona.
Now, though, women can vote.
Before the midterm elections, 61% of Arizona voters told AP VoteCast they believed abortion should be legal in most or all cases, while only 6% said it should be illegal in all cases. A campaign underway to place a constitutional amendment protecting abortion rights on November’s ballot needs to gather 383,923 verified signatures by July; a week ago the campaign announced it already had 500,000 signatures.
It seems likely that voters will turn out in November to elect lawmakers who will represent the actual will of the people in the twenty-first century.
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Notes:
https://azmemory.azlibrary.gov/nodes/view/38227
John S. Goff, “William T. Howell and the Howell Code of Arizona,” American Journal of Legal History 11 (July 1967): 221–233.
Acts, Resolutions and Memorials, Adopted by the First Legislative Assembly of the Territory of Arizona (Prescott: Office of the Arizona Miner, 1865).
https://www.nytimes.com/2022/09/23/us/arizona-abortion-ban.html
https://www.nytimes.com/interactive/2024/04/09/us/arizona-abortion-ruling.html
Twitter (X):
How revealing it is to read the historical context for this decision, which is abominable. It makes a mockery of not just Arizona but the nation and what it’s become.
On the bright side, the decision makes it more likely that democracy will win in November.
Heather, your writing here is exceptional! I especially appreciate the detailed research you've judiciously set forth regarding the background of these primitive "laws." How the highest court in Arizona could hold that these "laws" could in any way be relevant to or representative of the wishes of the people of Arizona is beyond my comprehension.