Arizona and Abortion: The Calendar Is Lying When It Reads the Present Times

Posted in: Reproductive Law

Last week, the Arizona Supreme Court upheld an 1864 law that bans abortions and criminally punishes doctors who provide them. The decision is currently on hold but will likely take effect soon. This will have devastating consequences for women in Arizona, who will be barred from accessing abortion from the moment of conception, including in cases of rape or incest. The only exception is for an abortion that is necessary to save the woman’s life. Based on this ruling, a law from 1864 will govern abortion in Arizona rather than a law adopted in 2022. As protest singer Phil Ochs sang about the state of Mississippi during the 1960s, the “calendar is lyin’ when it reads the present times.”

Dueling Abortion Laws: 1864 or 2022?

Just one year before the Civil War ended, forty-nine years before Arizona became a U.S. state, and fifty-six years before women had the constitutional right to vote in federal elections, the legislative assembly of the territory of Arizona enacted the Howell Code. Befitting the time, the legislative session was held in a log cabin. The eighteen men voted to approve the Code, which was the territory’s first set of codified laws. They also granted two private divorces—laws to dissolve specific marriages because judicial divorce had not yet been made possible.

This code included a criminal ban on abortion. It was amended slightly in 1901 and then carried over into the code adopted after statehood in 1913 in a provision later renumbered §13-3603. This law was operative until the early 1970s. In 1971, Planned Parenthood Center of Tucson sued, alleging that the law violated both the state and federal constitutions. This was an era in which attitudes about the legality of abortion were changing—several states had voluntarily repealed or modified their abortion laws, and courts in other states had found abortion bans constitutionally suspect. In this case, the trial court ruled that Arizona’s abortion statutes were unconstitutional. The court of appeals reversed, concluding that they were constitutional. But shortly thereafter, the U.S. Supreme Court issued the decision in Roe v. Wade, in which it held that there was a constitutional right to abortion and that states could not ban the procedure during the first or second trimester of pregnancy. The Arizona court of appeals then reconsidered its ruling and held that the Arizona statute was unconstitutional under Roe; the court issued an order to prevent enforcement of the unconstitutional law.

The 1864 law had no effect after 1973 because it conflicted with Roe; under the Supremacy Clause of the U.S. Constitution, federal law trumps state law. But Arizona’s legislators never removed the law from its books; they even affirmed its place in state code in 1977. But because of Roe, Section 13-3603 was unenforceable. For the next forty-five years, it lay forgotten in Arizona’s code, consigned—it seemed—to the ash heap of history.

So what happened when the Supreme Court wantonly changed its mind on abortion in 2022 and held, in Dobbs v. Jackson Women’s Health Organization, that there is no constitutional right of abortion? (For more on the Dobbs ruling, see here.) Did the 1864 law suddenly come back to life on its 158th anniversary? That is the crux of the question posed in the Mayes case decided last week.

The Mayes decision exists because a single, enterprising, elected Republican attorney general—Mark Brnovich—saw his chance. With the federal right to abortion eliminated, the only thing preventing Brnovich from prosecuting doctors under the 1864 law was the Roe-era injunction against its enforcement. Quickly, Brnovich filed a motion in Arizona court to remove the injunction. He filed a motion in the case that was originally filed in 1971, arguing that the injunction should be lifted because the basis for it—the ruling in Roe v. Wade—was no longer in place. Wrapped up in the motion was the question about whether and how to harmonize the 1864 provision—§13-3603—with an Arizona law passed in 2022 that bans abortions after the fifteenth week of gestation, §36-2322. The trial court granted the motion and vacated the injunction in its entirety, allowing full and immediate enforcement of the 1864 strict abortion ban. The court of appeals, however, held that while the basis for the injunction had disappeared, it was the court’s job to consider the full statutory scheme, including the many abortion laws passed by the Arizona legislature since 1973, including the 15-week ban. It concluded that while the 1864 law could be enforced, it could not be used to prosecute doctors who performed abortions before the end of the fifteenth week and in compliance with any other current abortion restriction or regulation.

The case made it to the Arizona Supreme Court. There, it met a receptive audience. Only a few years earlier, Arizona’s then-governor, Republican Doug Ducey, had expanded Arizona’s Supreme Court and packed it with anti-choice justices. The Arizona Supreme Court was then enlisted to consider this case and to decide, in Planned Parenthood v. Mayes, whether the 1864 abortion ban can be enforced and, if so, whether it can be enforced without regard to laws later passed by the state legislature such as the 15-week ban. Four of Ducey’s picks voted to lift the injunction and revive the moribund law. The court’s four-person majority concluded that the 1864 ban applies to all abortions other than those necessary to save the pregnant woman’s life. According to the majority, there is no conflict between the law that bans all abortions and the law that bans abortions only after fifteen weeks of gestation. They can all be simultaneously enforced. The whole episode—the ancient law, the dubiously-ethical attorney general, the anti-abortion court—shows just how easy it now is for abortion foes to roll back women’s rights. Voila! The hands of time unwind.

The Problem of Ahistorical History

The majority in this case started from the premise that the 1864 law banned abortions from the moment of conception. The relevant provision (§13-3603) states:

A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs, or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

The majority makes no attempt to interpret the statute, simply concluding that “physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.” The dissent does no better, claiming that “Section 13-3603 is unambiguous, and no one suggests otherwise.”

This conclusion is the first indication that resurrecting laws from two centuries ago is not a good idea. The history of abortion is complicated, but the historical evidence shows the law was likely only intended to punish abortions that occurred after quickening—that is, after the woman first feels the fetus move (colloquially known as when the “baby first kicks”), which is around 16 to 20 weeks of gestation. It is helpful to note that scientists did not discover how babies are made until 1875. It made sense to regulate abortion only after there was some external evidence a pregnancy existed—there was no other way to prove it at that time other than by feeling fetal movement. But this modern-day court simply reads the words of the statute and gives them a 21st-century meaning, without regard for this historical information. This misstep—which fundamentally changes the stakes of the case—underscores the absurdity of enforcing a 160-year-old law in modern America.

To a layperson, the text of the law would suggest that the court’s interpretation is correct: that the law bans all abortions except those required to save a woman’s life. But the circumstances surrounding the law’s enactment make it clear that is not what the law means. For one, as scholar Aaron Tang has documented, the common law in effect when the law was passed did not punish pre-quickening abortions. When states began to enact anti-abortion statutes during the second half of the 19th century, some of them did diverge from the common law, adding specific language into their laws stating, for instance, that abortion was banned “whether such child is quick or not,” (as in Maine) or that it was banned “at any period” of pregnancy (as in Maryland). Arizona—critically—did not include any such language. This tells us that Arizona meant to stick with the common law and ban only post-quickening abortions.

Moreover, the punishment for violation indicates that the law only targeted post-quickening abortions. In seven states that banned abortion pre-quickening, the maximum sentence was one year in prison. In Arizona, by contrast, the maximum sentence was five years. The longer sentence provided by Arizona’s law reinforces the conclusion that the territorial legislature only intended to target the more serious crime: post-quickening abortions.

The court’s willful misinterpretation of the 1864 statute highlights how few protections there are for reproductive rights in the post-Dobbs era. A single decision from the state’s supreme court has brought this century-and-a-half-old law back to life.

Time Does Not Stand Still: The Absurdity of Resurrecting a Law from the Century Before Last

In this case, the Arizona Supreme Court ignored standard canons of statutory interpretation to reach a conclusion in line with the politics of the judges: that the more extreme abortion ban can be enforced despite the passage of a conflicting law on the same subject just two years ago. But even putting aside the illogical and lawless nature of the court’s reasoning, we need to focus on the bigger picture. Courts cannot just pluck enactments out of history and drop them in modern society—and expect them to make sense.

Consider the circumstances under which the 1864 law was passed. Arizona was not yet a state. Women could not vote. Married women had no legal identity because it was suppressed or “covered” by their husband’s identity for the duration of marriage. (The Howell Code actually let women own property and then repealed that provision one year later.) The assembly members who voted to enact the code wore weapons to the session—ostensibly to protect them from attacks by Native Americans while they traveled on foot or horseback to the log cabin in Prescott. It would be impossible to recreate this scene today because so much in the world has changed.

With abortion, it’s the same problem—a mid-19th-century abortion ban is utterly meaningless in modern society. Opposition to abortion in the second half of the nineteenth century rested on four basic ideas. The first was the connection between abortion and immoral behavior. American law enforced and reinforced a strong social norm: the only legitimate sex was to occur within marriage. Legal abortion, it was thought, made it too easy for women to avoid the stigma and shame of premarital sex, thereby contributing to the breakdown of the taboo. That taboo is, however, long gone. The Supreme Court has gone so far as to say people have a constitutional right to engage in consensual sexual behavior with other adults.

The second idea was about public health. Abortion in the 19th century was a risky surgical procedure, with many women turning to poisons or unskilled practitioners. There were famous and experienced people who performed abortions, such as Madame Restell who apparently never lost a patient, but most women who needed a solution to an unwanted pregnancy were left in the hands of much less skilled providers. But the risks of abortion diminished dramatically over time. Along with general developments in surgical and antiseptic techniques, women had greater access to skilled providers as the 20th century progressed. And today, with the development of very safe surgical procedures and an FDA-approved option for medication abortion, the risks of abortion are miniscule. A woman is fourteen times more likely to die in childbirth than from an abortion. Moreover, the evidence is quite clear that the restrictions on abortion are what pose health risks to pregnant patients, not the abortion itself.

The third source of anti-abortion activism during this time period was a power struggle between the newly organized medical profession and the lay people, including midwives, who had previously tended to women’s reproduction and health. Restricting abortion was one way for the doctors to drive everyone else out of business. The medical profession won its war. The practice of medicine is now rigorously professional. But here too, modern law has turned the issue upside down: states like Texas are at war, not with quacks, but with actual trained doctors, with gynecologists and obstetricians who have been trained and certified on issues of women’s health.

Finally, 19th-century abortion bans were justified by the eugenics movement—a long-rejected ideology that the government should encourage “good” people to have more children and “bad” people to have fewer. Abortion bans were designed in part to force middle-class, Protestant, white women to have more babies. The “science” behind eugenics has been completely discredited (we now know, for example, that criminality is not hereditary) and could no longer be used constitutionally or otherwise to justify a legislative enactment. And it doesn’t make any historical sense in another way—the people who are forced to give birth under a strict abortion regime are mostly poor and disproportionately non-white. A 19th-century eugenicist might not even support this law today, and certainly a 21st-century lawmaker should not.

Mostly for better, we live in a very different world than did those assemblymen who passed the Howell Code. The abortion law they passed, like the world they lived in, is obsolete.

The ruling in the Mayes case is all the more absurd given that the state’s own legislature has passed a host of abortion laws in this century—many within the last few years. The most relevant expression of legislative intent is in the 2022 law that bans abortion after the 15th week of gestation. And while that law is a travesty of its own—making safe and legal abortion unavailable to people in Arizona who sometimes find themselves in dangerous and heartbreaking situations at some later point in pregnancy—it is also a travesty to ignore it in favor of a law passed a century and a half earlier. Modern people of Arizona deserve a supreme court that can tell the difference between a log cabin and a capitol building.

Posted in: Reproductive Law

Tags: Abortion, Arizona

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