When Arizona’s Supreme Court ruled Tuesday that an 1864 territorial law can be enforced, it reinstated a near-total abortion ban that was enacted before women had the right to vote and before Arizona became a state in 1912.
The 1864 law comes from the Howell Code, a nearly 500-page document of legal provisions adopted by the first legislative assembly of the territory of Arizona.
On Page 54 of the Civil-War era document, tucked between punishments for fighting and disfiguring a person, is a code that punishes anyone “with the intention to procure the miscarriage of any woman then being with child.” They “shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years,” with exceptions when it’s “necessary to produce the miscarriage of a woman in order to save her life.”
That code was enshrined in Arizona laws when the territory became a state nearly 50 years later.
Less than a week after the U.S. Supreme Court overturned Roe v. Wade in the summer of 2022, eliminating the constitutional right to abortion in the U.S. then-Republican Attorney General Mark Brnovich argued that the 1864 abortion ban should be enforced rather than the 15-week ban that the Arizona Legislature had passed several months earlier.
Then-Gov. Doug Ducey had signed Senate Bill 1164 into law in March 2022. It would have made abortions illegal after 15 weeks of gestation, included no exceptions for rape or incest, and punished health care physicians with Class 6 felony charges and revocations or suspensions of their license.
However, Brnovich petitioned the court in July 2022 to instead allow the implementation of the 1864 law — effectively a blanket ban on abortion.
In response to that case, Arizonans faced another confusing twist in Sept. 2022. That’s when Pima County Superior Court Judge Kellie Johnson sided with the state attorney general and rejected Planned Parenthood’s arguments that it’s absurd to revert to a territorial law when there have been a patchwork of abortion laws on the books, including the one signed by Ducey that would’ve gone into effect Sept. 24, 2022 making abortions in Arizona legal up to 15 weeks of pregnancy.
At issue in the case before Johnson was a 1973 lawsuit, Nelson v. Planned Parenthood Center of Tucson, that challenged the 1864 ban and established the legality of abortion in Arizona by overturning the earlier ban. Until Johnson’s ruling, the 1973 case had stood as an argument to Brnovich’s stance on criminalizing abortions under the 1864 law.
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Only two weeks after the 1973 ruling, the Roe v. Wade decision was issued, establishing a nationwide constitutional right to abortion. The U.S. Supreme Court ruling overturning Roe v. Wade in 2022 triggered state fights across the nation like the one in Arizona over abortion healthcare access.
Johnson’s ruling cleared the way for criminalizing nearly all abortions in Arizona and allowed the state’s then-Republican attorney general his choice to enforce the law dating back to 1864 when the Civil War was still raging, when the art of surgery was in its infancy, and nearly 50 years before women could vote in Arizona. The state approved constitutional amendments for women’s suffrage eight years before the U.S. ratified the 19th Amendment in 1920, which cleared the way for women who were not people of color to vote nationally.
The 1864 ban made no exceptions for women who have been raped or people who have been victims of incest to get an abortion in Arizona.
The lack of clear medical guidance drew a chilling response from those who feared the human-rights and health abuses that would ensue as doctors and nurses weighed prison against endangering a mother’s life.
Then, just before the new year, Arizonans saw a reprieve for abortion healthcare access. The Arizona Court of Appeals ruled in December 2022 that the 15-week ban signed into law earlier that year should stand as the state’s law.
“Far from providing law enforcement agencies broad discretion on prosecuting elective abortions, our most recent statute gives detailed instruction to those officials on when physicians may, and may not, be criminally prosecuted or civilly sanctioned for performing an abortion.”
The ruling also outlined unconstitutional conflicts between Arizona statutes. “Had our legislature intended the lawfulness of elective abortion to vary depending on the county-by-county discretion of local law enforcement officials, county attorneys, and the state-wide discretion of the attorney general, it would have specified such a complicated and extraordinary approach in direct, unambiguous language.”
“Instead, in the 15-week law, our legislature sets forth a detailed regulatory structure outlawing elective abortions after fifteen weeks of gestational age.”
The fight in Arizona over access to abortion healthcare continued in 2023 as the Alliance Defending Freedom, representing Eric Hazelrigg, an obstetrician with anti-abortion centers, filed an appeal with the Arizona Supreme Court.
Tuesday’s Arizona Supreme Court 4-2 ruling relied heavily on the 2022 Republican-backed law stating that it did not repeal any past laws, including the now-revived 1864 ban enacted before women could vote. The ruling was issued with a striking dissent penned by the only two justices appointed by former Gov. Jan Brewer and not Ducey.
Vice Chief Justice Ann A. Scott Timmer along with Chief Justice Robert Brutinel issued the dissenting opinion. “In my view, the majority mistakenly returns us to the territorial-era abortion statute last operative in 1973. I would leave it to the people and the legislature to determine Arizona’s course in the wake of Roe’s demise. With great respect for my colleagues, I dissent,” Timmer wrote.
All of Arizona’s Supreme Court justices were appointed by Republican governors. All but two of the seven sitting justices ruling on access to abortion healthcare are men.
“To date, our legislature has never affirmatively created a right to, or independently authorized, elective abortion. We defer, as we are constitutionally obligated to do, to the legislature’s judgment, which is accountable to, and thus reflects, the mutable will of our citizens,” states the majority ruling written by Justice John R. Lopez IV.
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