Arizona’s 1864 pro-woman, anti-abortion law
Many of you will have noticed the latest fascinating state-level legal development in America’s renewed-but-decentralized struggle over abortion. On Tuesday, the Supreme Court of Arizona ruled that an absolute state ban on abortions dating back to 1864 is still enforceable living law despite innumerable legal changes since.
An awful lot of our readers live in Arizona for about half the year, and most of you probably know that Arizona didn’t enter the Union as a state until 1912. So this is a law that was written when Arizona was still mostly unoccupied and half-wild — with the American Civil War still raging to the east.
The purely constitutional issue before the Arizona court was whether the old territorial law had been extinguished by the history that has happened since — in particular, the 1973 establishment via Roe v. Wade of a federal right to abortion; the erasure of Roe by means of 2022’s Dobbs v. Jackson decision; and the latest written Arizona abortion law, which was passed in 2022, a few months pre-dobbs, and which restricts abortions after a fetal age of 15 weeks.
In the face of all these changes, the state still has a modified version of the 1864 rule on the statute books: it was never explicitly repealed. So which state law prevails — 2022’s or 1864’s? Can they be read so as to agree? Is the 2022 rule contingent on a federal abortion right that has now vanished?
Lower state courts ruled that the new law necessarily superseded the old one; the state’s highest court has now, while complaining of the awkward logical tangle, found that the old law is still law. If the total abortion ban dating back to territorial times isn’t repealed by the legislature, it is subject to enforcement.
This has created some panic and confusion for women and abortion providers, who were preparing to live with the 15-week rule, although they haven’t yet exhausted their appellate options. The decision will certainly put abortion at the centre of Arizona’s November legislative elections.
None of this hubbub was, to me, anything more than an invitation to go stick my nose into an old book. My heart lives in the 19th century, and I go when I can. So I was naturally curious about the language of Arizona’s original abortion rule, set down in 1864 by a gentleman named William Thompson Howell (1810-1870).
Howell was a bright young lad born in New York who moved west with the American frontier, chasing opportunity as far as Newaygo, Mich. During the Civil War, the Union Congress created the Arizona Territory and needed a good loyal Republican lawyer to go organize a whole new judiciary. Howell, chosen personally by President Abraham Lincoln, left his family behind in Michigan, having colourful frontier adventures along the way, and he set up the first-ever American court in Arizona.
But shortly after Howell’s arrival, his wife fell ill back east and one of his children died. Howell had already buried two wives. He couldn’t bear to stay put on Mars waiting for bad news. He wrote, in some haste, a criminal code customized to Arizona — and then departed on official leave, never to return to the Southwest.
No one in Arizona would remember or tell tales of poor Howell, who was outlived in the end by the sick wife back home. But the “Howell Code” and its reputation held up very well over the years. The Michigan lawyer had cobbled together criminal laws from New York and California, and he is said to have done an intelligent job of adapting his code to local customs and westerntype understandings of water rights.
What does the Howell Code, the original, say about abortion? We can, of course, go look. Probably some of my longtime readers will sense that I’m approaching a pet topic: namely, that the western world’s traditional view of abortion isn’t anything like the view of today’s pro-choicers or its pro-lifers. Old laws and treatises show this readily enough. When our forebears outlawed abortions, they thought of themselves as solving a social problem — protecting vulnerable females from seducers and abortionists, not the lives of babies.
That, at any rate, is how I see it. The old Howell Code bans abortion under Section 45, whose first provision forbids garden-variety poisoning:
“Every person who shall wilfully and maliciously administer or cause to be administered to or taken by any person, any poison or other noxious or destructive substance or liquid, with the intention to cause the death of such person … shall be punished by imprisonment in the Territorial prison for a term not less than 10 years, and which may extend to life.”
Murder’s already illegal anyway: this is a specific provision to cover attempted poisoning. Why, then, does this section of law turn immediately to abortion? Because toxic substances were, from classical times up to the middle of the 20th century, a favoured non-surgical method of inducing abortion — and “fallen” women would sometimes be killed by the effects of folk remedies like pennyroyal or turpentine or lead oxide. (Note: “folk remedies” are about the only kind that existed at this point in human history.)
If they took their chances with surgical abortion, of course, the outcomes were much worse and the costs were higher. So the Howell Code continues:
“And every person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then being with child … shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years: 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 a woman in order to save her life.”
This is a law with a recognizable modern feature — a life-of-the-woman exception for accredited doctors. But it isn’t written in language that dedicates any discernible attention to the personhood and entitlements of the fetus. No law of that time ever is. Howell obviously wasn’t designing rules with the primary intention of preventing a species of homicide, of baby-killing. And if he was, well, it’s a distinctly diminished kind of homicide that can only get you five years in the hoosegow, max.