Arizona’s Supreme Courtroom opened a brand new entrance within the struggle on ladies’s reproductive rights final week when it resurrected an obscure 1864 regulation that bans abortion in nearly all circumstances. Critics of the ruling say the courtroom has thrown Arizona again into the Nineteenth century.
That isn’t totally truthful to the Nineteenth century.
The irony of final week’s reactionary ruling is that the creator of the unique regulation, William T. Howell, was a progressive by the requirements of his time. The politics of Arizona’s present justices bear little resemblance to the Nineteenth century antecedent upon whom their ruling depends.
Though lots of Howell’s views have aged poorly, he argued towards the period’s prevailing patriarchal dogma and in favor of ladies’s property rights. Even his abortion regulation was guided by considerations about maternal well being, not the right-wing, spiritual orthodoxy that animates a lot of the antiabortion motion immediately.
If Nineteenth century authorized precedent is necessary, so is historic context. As immediately’s legal professionals and politicians battle over the way forward for abortion rights, they need to perceive how and why the unique Arizona regulation got here to be. The statute emerged from the upheaval of the Civil Conflict and its little-known entrance within the West.
As a historical past professor and the creator of a e book on this topic, I by no means anticipated Howell to develop into a posthumous standard-bearer for the fashionable American proper. If he’s recognized in any respect, it’s as an agent of Abraham Lincoln’s marketing campaign to stamp out slavery within the Southwest and safe Union management of the area.
That story started within the spring of 1861, when a band of migrants from neighboring Texas seized energy in southern New Mexico. Proclaiming their affinity for the slave-holding South, they broke from the Union and threw their allegiance behind the newly fashioned Confederacy. They named their new insurgent territory “Arizona.”
A number of months later, the Confederacy launched its first invasion of the struggle — into the Southwest. The insurgent invaders routed U.S. troops in a number of battles, secured navy management over Arizona and seized Santa Fe, New Mexico’s capital. Then they deliberate to march on the gold fields of California.
They by no means made it. Within the spring of 1862, Union troops sabotaged the Confederates’ provides and eventually despatched them scrambling again to Texas.
Congress then divided the area right into a western half (Arizona) and an jap half (New Mexico), splitting the erstwhile Accomplice Arizona Territory. To strengthen the Union’s tenuous maintain, Lincoln poured federal troops and brokers into the area. One in every of them was Howell, newly appointed as an affiliate justice of Arizona’s territorial Supreme Courtroom.
A veteran jurist and former Michigan legislator, Howell set to work on a brand new code of legal guidelines for Arizona. The ultimate doc, now generally known as the Howell Code, ran to almost 500 pages. One in every of its main functions was to make sure that slavery would by no means once more take root in Arizona.
Buried inside it was the now-infamous abortion ban. The supply was no outlier. Actually, it was copied from California’s authorized code, considered one of many such legal guidelines handed by states and territories within the 1860s and ’70s.
From the colonial period into the early Nineteenth century, abortions had been generally administered and infrequently criminalized. Benjamin Franklin even included a recipe for an abortifacient in a math textbook, of all locations. Abortions earlier than “quickening” — inside roughly the primary 4 or 5 months of being pregnant — have been thought-about “the purview of ladies” reasonably than the regulation, in line with the historian Sarah Handley-Cousins. Even the Catholic Church “implicitly accepted” abortions earlier than quickening, the historian Leslie J. Reagan has famous.
The Howell Code, then, marked a departure from a extra permissive strategy to abortion. Even so, the antiabortion legal guidelines of the mid-Nineteenth century have been typically born of a honest concern for ladies’s well being that’s absent from immediately’s laws. Tellingly, Arizona’s authentic antiabortion clause appeared inside a provision on poisoning. The underlying premise was that abortions posed well being dangers to ladies, who have been seen as victims and never held legally responsible for the medical procedures carried out on them.
Howell himself had a girl’s well being on his thoughts on the time. Shortly after drafting the code, he rushed again to Michigan to be on the bedside of his unwell spouse. She survived, and Howell remained in Michigan, by no means seeing his code put into apply.
The decide had beforehand defended ladies’s proper to property in their very own identify reasonably than subsumed underneath her husband’s. He additionally advocated free public faculties and opposed capital punishment (although executions have been allowed for sure crimes underneath the Howell Code).
Howell is not any progressive poster little one by immediately’s requirements. He was in some ways a person of his time. And his code, written rapidly in his provisional courtroom — an adobe shack adjoining a horse corral — mirrored a few of the prevailing prejudices of the early American frontier, imposing quite a few restrictions on individuals who weren’t white.
However Howell is nonetheless a clumsy antecedent for immediately’s antiabortion motion. If Arizona’s twenty first century Supreme Courtroom justices want to exhume an obscure Nineteenth century predecessor from the recesses of historical past, that’s their prerogative. However they need to perceive that even he’s misaligned with their excessive politics.
Kevin Waite is an affiliate professor of historical past at Durham College and the creator of “West of Slavery: The Southern Dream of a Transcontinental Empire.”
