Arizona’s 1864 Abortion Law

In 1864 Arizona was a newly created territory with a multitude of problems and a population of about 5000 non-Indians (about half of whom became U.S. citizens when southern Arizona was acquired from Mexico in the 1854 Gadsden Purchase.) The only real town in the territory was Tucson. It was a backward place of rough adobe hovels.

An unnecessary war with the Chiricahua Apache had driven virtually all of the ranchers and miners out of Southern Arizona. Federal troops had gone East to fight in the Civil War leaving the area defenseless. Southern Arizona and New Mexico initially sided with the Confederacy in the hope of gaining some protection from the Apache. A column of California Volunteers drove out the Confederates, seized the property of a prominent collaborator and attempted to restore order. The Lincoln administration gave the area territorial status and appointed a Governor who died before he could take office. The second Governor headed for Fort Whipple which had been established to protect mining claims in the Prescott area. This became the Capitol for a time. The first legislature convened in a log cabin in September of 1864. Since all members were not present, they ordered liquor and tobacco and partied for 3 days. The Speaker of the Arizona House was W. Claude Jones, a lawyer from Tucson. Jones had been a Confederate sympathizer during Arizona’s brief time as a Rebel territory. He had previously resigned as US Attorney in New Mexico after marrying a 12-year-old Mexican girl. ) At the end of the legislative session, he married a 15-year-old. (He would later move to Hawaii where he married another 15-year-old.) One legislator resigned and another died during the term. Another legislator was granted a divorcé on the basis of “fraudulent concealment of criminal facts”. Dressed in frontier attire and packing guns, the legislature set about establishing the framework for Arizona’s government. They set up Arizona’s 4 original counties, established a badly needed territorial militia, provided for future schools, set up franchises for toll roads and developed a code of laws. Called the Howell Code after one of its authors, the code drew heavily from the legal codes of New York and California.

Arizona’s 1864 Howell Code came back into focus on April 9, 2024. In a 4-2 ruling the Arizona Supreme Court held that the prohibition on abortion in the code with the only exception being the life of the mother was still legally in force.

This provision of the 1864 Howell Code reads as follows:

And every 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: Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.”

This court ruling is causing a tsunami of activity. Some politicians are seemingly changing long-held stances on the abortion issue. Former gubernatorial candidate Kari Lake, who once praised the law, has called for its repeal. (Given the political affiliations of the current legislature and the Governor, that seems unlikely.) Former Governor Ducey, who appointed all 4 justices who affirmed the law, is also trying to distance himself from their decision. The appointments of 2 of the Justices who voted to affirm the 1864 law must be confirmed by the electorate in November.

Meanwhile, a grassroots movement has already gathered enough signatures to put an initiative to amend the state constitution to include abortion policy on the ballot in November. It will require 60% of the votes to pass.

Arizonans need to buckle up for a bumpy ride over the next several months.

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