Nothing `great' about Arizona's 1864 abortion ban
“When exactly was America great?” is a common question often asked of Donald Trump loyalists sporting MAGA (Make America Great Again) hats.
The Republicandominated Arizona Supreme Court has an answer: 1864. Put aside that the nation was embroiled in a civil war, millions of people were brutally enslaved, native populations were being driven from their lands and that women were more than a half century from having the right to vote. What apparently made America great in 1864 were extremist anti-abortion laws then in existence.
These old laws are being dusted off in the wake of the
U.S. Supreme Court's June, 2022 Dobbs decision that overturned Roe v. Wade's federal guarantee of the right to abortion.
This week, the Arizona Supreme Court ruled that an 1864 Arizona abortion ban, including in cases of rape or incest, still stands (with an exception to save the life of the pregnant person). The court stayed its enforcement for two weeks pending final appeals. If those fail, abortions will be criminalized in Arizona, with anyone performing one or even assisting someone in obtaining one facing up to five years in prison.
First, some history: Arizona was a territory, not a state, in 1864, and was briefly contested during the Civil War. Confederates wanted it for its vast mineral wealth and for potential access to the Pacific Ocean. Union leaders sent in troops, winning decisive military control in 1862. President Lincoln appointed William Howell, a Michigan judge, to write Arizona's laws, specifically including the banning of slavery (with the notorious exception, also included in the Constitution's 13th Amendment, that prisoners can be subjected to forced labor) and the protection of fugitive slaves from capture and return to the South. Howell also included in the 461-page document, for reasons that are not entirely clear, a short section banning abortion.
While our society has progressed dramatically in the intervening 160 years, four Arizona Supreme Court justices, all appointed by the state's previous Republican governor, Doug Ducey, ruled that the law is just fine as is.
In 2022, Arizona passed a 15week abortion ban. That wasn't extreme enough for some antiabortion activists, who sought a court order reinstating the 1864 ban.
Arizona Governor Katie Hobbs, a Democrat, said after this week's ruling, “I promise I will do everything in my power to protect our reproductive freedoms.”
Arizona Attorney General Kris Mayes, also a Democrat, said, “No woman or doctor will be prosecuted under this draconian law.”
U.S. Supreme Court Justice Samuel Alito included the 1864 Arizona ban in a list of other state and territorial laws in his controversial Dobbs decision that overturned Roe. Several historians have pointed out that Alito's list of laws dating from as far back as 1825 fails to provide any context and misses the point that medicinal abortion was a common and accepted practice throughout the colonial era and into the 19th century.
More importantly, the historical laws Alito relied on to overturn Roe completely ignore two centuries of progress.
“A majority, overwhelming majority, of the population wants abortion to be legal in all circumstances,” Amy Littlefield, abortion access correspondent at The Nation, said on the Democracy Now! news hour. “After Dobbs, that population is angry. They are motivated. They are voting. They are organizing. And Republicans and Democrats alike understand this.”
The impact of the Arizona abortion ban will be enormous. On a clinical level, thousands seeking abortions will be denied access, unless they have the resources to travel to another state.
Politically, the Arizona law could be earth shattering. Arizona Abortion Access is a group collecting up to one million signatures – several times the number needed – to put an amendment on the Arizona ballot in November, to enshrine the right to an abortion in the state constitution.
Voters will flock to the polls to support this abortion access referendum. Arizona Republican Senate candidate Kari Lake understands this, and criticized the state Supreme Court decision this week, despite lauding the 1864 ban in 2022.
Likewise, former President Donald Trump said in a video statement that abortion laws should be left to the states, but then, two days later, said the Arizona Supreme Court went too far.
Arizona is a swing state, and Trump knows abortion has been a winning issue for Democrats since Roe was overturned. An abortion rights referendum will also be on the ballot in Florida, where a six-week ban is about to go into effect, putting that reliably red state back in play for President Biden.
1864 was a pivotal year in U.S. history, as the tide shifted in the civil war, leading to Union victory and the abolition of slavery the following year. Yes, the nation made faltering progress then, but it was by no means “great.” For true greatness, we can only look to the future.