How an 1864 law set the stage for Arizona court’s abortion ruling

One hundred and sixty years ago, after Union forces had wrested control of the American Southwest from Confederate troops, President Abraham Lincoln appointed a New York judge to write the legal code of the newly formed territory of Arizona.

The judge, William Thompson Howell, was tasked with ensuring that the new laws that would govern Arizona - which was previously part of New Mexico - would fully abolish slavery. But tucked into the 500-page document known as the Howell Code was another provision: a ban on all abortions except to save a woman’s life, under penalty of prison time for doctors who performed the procedure.

Arizona’s Supreme Court on Tuesday upheld that 1864 law, ruling on a request from the state’s former attorney general to restore it in the wake of the Supreme Court’s 2022 decision to overturn Roe v. Wade - a request that had set off a legal battle with Planned Parenthood. The justices’ 4-2 decision paves the way for most abortions to be banned in the state, making Arizona the 17th state to virtually outlaw abortion. The decision could still face legal challenges.

The legal underpinning for the ban rests on a section of the 1864 Howell Code.

Lawmakers and abortion rights advocates criticized the court’s decision to revive a century-old law. “This cruel ban was first enacted in 1864 - more than 150 years ago, before Arizona was even a state and well before women had secured the right to vote,” President Biden said in a statement. Officials from Planned Parenthood Arizona, a party to the court case, called the law “archaic.”

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The relevant portion of the 1864 law, which was codified into similar language in Arizona’s Criminal Code, reads: “[E]very 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, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years.”

Before the Howell Code was adopted, Arizona had voted in 1861 to align itself with the Confederacy. When the U.S. military regained control of the area, the House of Representatives voted to establish the Territory of Arizona in 1863.

The new territory needed new laws. Lincoln named Howell, a New Yorker who held several legal and political roles in Michigan, as a judge. Howell was considered relatively progressive for his time, having worked to abolish capital punishment, among other causes, said Kevin Waite, an associate professor of American History at Durham University in the United Kingdom.

But while the Howell Code outlawed slavery and enshrined certain rights for married women, such as the right to own property in their name, it also contained “standard reactionary 19th-century” provisions like the antiabortion clause, Waite said.

The inclusion of the clause was a sign of how attitudes toward abortion in the United States were growing more restrictive at the time, a precursor to the Victorian-era “moral panic” around women’s sexuality, he added.

Before the mid-1800s, abortion was a “fairly common and uncontroversial issue, in the United States and elsewhere,” historian Sarah Handley-Cousins wrote in an article published by the National Museum of Civil War Medicine. When women stopped having their period, either because they were pregnant or for another reason, “it was often interpreted as an unhealthy imbalance of humors” to be addressed, Handley-Cousins wrote.

Some women would choose to take “herbal or medicinal remedies known as emmenagogues” to bring their periods back - an action that was “not considered problematic” at the time, she wrote.

“Fetuses were not recognized as human lives, but rather a ‘blockage’ until quickening, or when a women first felt the fetus move, generally in the fourth or fifth month,” she wrote. “After this point, abortion would be taboo. What women did before this point was considered strictly the purview of women.”

In the 1820s and 1830s, states began banning abortifacients, and they came to be seen as poisons, according to Handley-Cousins.

It’s unlikely to be a coincidence, said Waite, that the antiabortion provision of the Howell Code was “tucked away” inside a section relating to the prevention of killings by poison. The preceding line stated: “Every person who shall willfully 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, and being thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than ten years, and which may extend to life.”

This, said Waite, was in line with the abortion debate at the time, which was often “more concerned with the health of the mother” than with making “a moral judgment about the propriety of abortion.”

In fact, religion was relatively absent from the debate at the time, he said. Leslie Reagan, author of “When Abortion Was a Crime,” wrote: “At conception and the earliest stage of pregnancy, before quickening, no one believed that a human life existed; not even the Catholic Church took this view. Rather, the popular ethic regarding abortion and common law were grounded in the female experience of their own bodies.”

That eventually changed. “In 1857, the American Medical Association began to advocate against abortion, declaring pregnancy the domain of physicians and rejecting women’s own bodily experience – thereby dismissing the experience of quickening as a turning point,” Handley-Cousins wrote. And according to Reagan, in 1869, “at about the same time that abortion became politicized” in the United States, the Catholic Church began to “condemn abortion; in 1895, it condemned therapeutic abortion.” By 1880, every state had laws restricting abortion, according to Planned Parenthood.

So the Howell Code, with its antiabortion provision, was “maybe a little bit ahead of the times, but it’s certainly not an outlier,” Waite said.