Precedent
In 2022, the United States Supreme Court overturned their own 1973 decision in Roe v Wade. That case governed abortion care in the United States for forty-nine years. In the Dobbs Decision, the Court determined that the 14th Amendment “due process” right does not apply to a women’s right to have an abortion. Since they found that “right” all of a sudden wasn’t in the Constitution, the Court said the entire issue was no longer under their jurisdiction.
That left abortion regulations decided on a state by state basis. This not only started a state abortion controversy. It also brought into questions other issues like gay marriage, birth control medications, and even interracial marriage. All are based on the same “right”, and determined on a national basis based on the same legal reasoning as Roe.
Many states depended on the Roe decision to regulate abortion care. Since the Supreme Court set national precedent, there was no reason to update other prior state laws, already invalidated by the Roe v Wade ruling. But when the Dobbs decision came down, the Roe precedent was ripped away. In many states all that was left governing abortion were laws on the books for more than a century.
Howell’s Law
This week, the Arizona Supreme Court reinstated an 1864 law banning abortions. Let’s see, 1864: Arizona became a new territory less than a year before, in February of 1863. It’s neighbors were Confederate Arizona to the South, the state of California to the west, and the Confederate Territory of New Mexico to the east. The enslavement of Black Americans was banned in the Congressional legislation that created the Territory, but it was still legal next door in New Mexico, and in the territory’s Confederate counterpart (there was a Confederate Arizona Territory as well).
Let’s place blame where blame is due. A New Yorker named William Howell was given the responsibility of writing the “criminal code” for the new Arizona Territory in 1864, and he was in a hurry. He simply copied large parts of California’s earlier (1851) code, including the total ban on abortion (LA Times).
Lincoln for President
This is all “ancient” American history, right? Who cares what William Howell did, plagiarism or not, back in 1864. In fact, 1864 was a pretty “big” year for the nation. It was the bloodiest year of the Civil War; the year of battles in the Wilderness, Spotsylvania and Cold Harbor, Atlanta and of Sherman’s March to the Sea. Abraham Lincoln was reelected President, but that was not a sure thing at all until Sherman’s victories. No one was paying a whole lot of attention to Mr. Howell’s work in the far reaches of Arizona.
This week, one hundred and sixty years later, the Arizona Supreme Court reinstated a portion of Mr. Howell’s “code”. Even though Howell copied his abortion ban a full forty-eight years before Arizona even became a state, the high Court confirmed this draconian ban on 21st Century medical care. Wisconsin faces a similar issue. Their law was written in 1849. But the makeup of the Wisconsin Supreme Court is such that it’s likely they will hold the Victorian era law applies only to “feticide”, forced abortions, rather than consensual abortion (Milwaukee Journal-Sentinel).
Absolute Ban
There is no “leeway” in the 1864 law, except for the life of the mother. Penalties include jail terms for medical personnel who perform “illegal” abortions. And while abortion clinics in Arizona pledge to continue operation until the last possible moment, that moment is now a matter of months away. Abortion care, including aborting non-viable pregnancies, will not be available in the state of Arizona.
Even though many of the statewide elected leaders of Arizona are Democrats and fully in favor of women’s right to access abortion care, Republicans hold narrow majorities in both the Arizona House and Senate. And when some modification of the Mr. Howell’s 1864 law came up, the Republican leadership shut it down without discussion.
More than Politics
It’s easy to talk about the political ramifications of the Arizona Court decision. It’s given huge impetus to a ballot initiative legalizing abortion, hoping to get on the Arizona statewide ballot in November. And, if that initiative succeeds in getting in front of the voters, there’s even more discussion about what impact that will have on the Arizona Presidential vote, as well as the pivotal US Senate election between Democrat Rueben Gallego and MAGA-Republican Kari Lake. Looking at the results of abortion initiatives in states like Kentucky, Ohio, Kansas, and Michigan; it’s probably bad news for Republicans. Frankly, as a Democrat, it probably aids in the critical national battle against MAGA’ism.
But what’s more significant is the impact this old law will have on the people of Arizona. Sure, those with “means” will still have the ability to leave the state for care, in California or Nevada or New Mexico. There’s even abortion care across the border in Mexico. But for those who can’t take days off to travel, can’t afford to pay for the travel or the overnight stays, the law’s impact is clear. They will be unable to access safe and legal medical care. And that will put more pregnant women in danger.
