Civil War going on when Arizona banned abortion

As Union and Confederate armies clashed in a bloody fourth year of the Civil War, President Abraham Lincoln tasked one man to create the legal code for Arizona, almost 50 years before the territory became a state.

New York judge William Thompson Howell wrote 500 pages that spanned provisions on dueling, accidental homicides by ax and age of consent that would govern the newly formed territory of fewer than 7,000 people. But tucked within the “Howell Code,” just after the section on duels, was an abortion law criminalizing the administering of “any medicinal substances ... with the intention to procure the miscarriage of any woman then being with child.”

That was 160 years ago. Last week, that same 1864 provision was resurrected by the Arizona Supreme Court, which upheld the near-total ban on abortion with no exceptions for rape or incest, a decision in one of the nation's most important presidential battleground states that quickly rippled across the political landscape.

The law's revival is just the latest instance of longdormant restrictions influencing current abortion policies after the U.S. Supreme Court overturned Roe v. Wade, a landmark 1973 decision that granted a federal right to abortion.

“This is just one more example of a century-old zombie law coming back to life,” said Jessica Arons, senior policy counsel at the American Civil Liberties Union. “This is what the U.S. Supreme Court set the stage for when Roe fell.”

Growth in Arizona in the 1860s was driven by miners seeking fortunes in a burgeoning gold and silver industry, while settlers increasingly were encroaching on tribal lands.

Arizona's 1864 code elaborately describes restrictions on duels, ruling any person involved in the fighting of a duel would be imprisoned for one to three years and meting out punishments for “mayhem” for those who “unlawfully cut out or disable the tongue, put out an eye, slit the nose, ear or lip, or disable any limb or member of another.”

Howell's code includes exceptions for homicides, such as when “a man is at work with an axe, and the head flies off and kills a bystander or where a parent is moderately correcting his child ... and happens to occasion death.”

The code also appears to set the age of consent at 10, proclaiming, “Every person of the age fourteen years and upwards, who shall have carnal knowledge of any female child under the age of ten years, either with or without her consent, shall be adjudged guilty of the crime of rape.”

Meanwhile, William Claude Jones, who presided over the 1st Arizona Territorial Legislative Assembly in 1864, was described by a biographer as a “pursuer of nubile females” and had throughout his life married a 12-year-old, a 15-year-old and a 14-year-old, according to a 1990 biography in the Journal of Arizona History.

The state's Civil Warera law is now likely to become one of the strictest abortion bans nationwide.