1864 Arizona Law on Abortion
The Arizona Supreme Court has dug back into laws enacted in the early days of Arizona Territory to create an almost total ban on abortion.
First, we have to set the stage. In 1864, Arizona was a very empty and wild place.
During the Civil War, which was still raging, troops were withdrawn to fight in the major battles in the East. Native Americans, often Apaches, owned the land and often killed white and Hispanic invaders.
President Lincoln issued an order, dividing the Territory of Arizona from New Mexico. It was apparently felt that putting another territory between Texas and California might help protect California’s gold from the rebels in the South.
So, Lincoln sent out a new governor to run the new territory. The party that came out had no way to know whether they were in Arizona, so they went as far as Navajo Springs in hopes it was actually in the new territory before swearing themselves in.
They went on to Prescott, sent out for liquor and tobacco, and waited for others to arrive. The arriving distinguished guests included mass murderers as well as more upstanding citizens.
They wrote a code of laws, with one (above) apparently attempting to punish women who sought to avoid having “bastard” children.
This is the statute I find in the 1864 laws, but I am not certain it is the only one the state Supreme Court used to outlaw all abortions in the state.
Sec. 38. If any woman shall endeavor, privately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female, which, if born alive, would be a bastard, so that it may not come to light, whether it shall have been murdered or not; every such mother being convicted thereof shall suffer imprisonment in the county jail for a term not exceeding one year; Provided, however, that nothing herein contained shall be so construed as to prevent such mother from being indicted and punished for the murder of such bastard child.
Note the emphasis on the marital status of the woman in relation to the child’s father, which today would raise some equal protection issues. The wording of the statute apparently makes the crime dependent on intent to keep the pregnancy from “coming to light.” A good lawyer, and there probably weren’t any in Arizona in those days, would say the statute did not apply because the woman didn’t care about the pregnancy “coming to light.”
I’m not sure this is the exact statute the Supreme Court is using to set Arizona’s policy on women’s health, but it was enacted in 1864, the year in question, and shows the Territorial Legislature’s knowledge and sensitivity on the issue.
Republicans are running for cover, begging the Democratic governor to save them from their own bad choices on healthcare policy. Kari Lake in particular has turned into a whirling storm of confusing and desperate pronouncements on the abortion issue. She is spinning so fast you might say that she is committing Blender Kari.
We need to turn out the vote. We need to enact the proposed initiative on women’s health. We need to throw out members of Congress, legislators and state Supreme Court justices by the dozens. Let’s get it done.
