Update May 3 at 9:05 a.m. PT: In Arizona, after weeks of delay, the state Senate finally voted to repeal the state’s 1864 abortion ban. The Senate is Republican-controlled—all 11 Democrats and two of the 19 Republicans joined them to vote to repeal the ban. However, because the legislature did not add an emergency provision, the ban will stay in place before the repeal takes effect—meaning that there is going to be a window where abortion is fully banned in the state. Advocates, including Democratic Gov. Katie Hobbs, are hoping that the state’s Supreme Court delays the implementation of the ban in order to reduce or eliminate this window.
“Arizona women should not have to live in a state where politicians make decisions that should be between a woman and her doctor,” Hobbs said in a statement. “While this repeal is essential for protecting women’s lives, it is just the beginning of our fight to protect reproductive healthcare in Arizona. I will continue to call on the legislature to pass the Arizona Right to Contraception Act and protect [in vitro fertilization] from ongoing attacks. And I encourage every Arizonan to make their voices heard this November when abortion rights will be on the ballot.”
As of late, some members of the judiciary have displayed a notable penchant for resurrecting zombie laws from the 19th century.
- Last month, Justices Alito and Thomas signaled their potential interest in reviving the moribund 1873 Comstock Act as a backdoor approach to the institution of a national abortion ban. Alito referred to Comstock’s criminal prohibition on the conveyance of articles used for abortion as a “prominent provision” and contended that “everyone in this field” knows about it, despite its having sunk into decrepitude.
- Then on April 9, the Arizona Supreme Court revived an 1864 pre-statehood ban on abortion—although the law will not go into effect immediately.
A very quick glance at the legal rights of women, as they existed during the latter decades of the 19th century, shows that women were denied the right to vote based on sentiments such as: “By keeping women in her exalted position, man can be induced to do more for her than he could by having her mix up in affairs that will cause him to lose respect and regard for her.”
When it came to marriage, a woman’s “very being or legal existence” was suspended and “incorporated and consolidated into that of her husband … under whose wing, protection and influence, she performs everything.” As for rape, not only was marital rape not a recognized legal injury, but in some states, criminal rape laws only covered white women.
As for abortion, the campaign by elite physicians associated with the American Medical Society to make abortion a strict statutory crime reached its zenith during this time period. The physicians’ campaign was premised on the belief that it was women’s “holiest duty … to bring forth living children.” This was especially true if, like the activist physicians, they were white, middle-class, Anglo-Saxon Protestants, so that their procreative efforts would serve as a buffer against being overtaken by the rising “foreign element” in their communities.
To quote the late Justice Ruth Bader Ginsburg, the way of thinking embedded in these laws reflected “ancient notions about women’s place in the family and under the Constitution, ideas that have long since been discredited.” The Arizona Supreme Court does not expressly traffic in these deeply gendered stereotypes that are contemporaneous with the abortion ban it has resurrected from the dead—but they are silently lurking in the margins of the opinion.
To pretend that banning abortion has nothing to do with the actual lives of pregnant persons is to erase a powerful legacy of sex discrimination in the law.
The majority justices devote a full 28 pages to arcane rules of statutory construction to determine the relationship between the 1864 total criminal ban on abortion and the 2022 15-week gestational limit ban, which are both subject to a life-saving exception. While the appeals court agreed with Planned Parenthood Arizona that these two laws could readily be harmonized to permit elective abortions during the first 15 weeks of pregnancy, with the ban then kicking in at this juncture, the Arizona Supreme Court disagreed.
It instead concluded that the 2022 law did not actually create a right to abortion, and therefore did not supersede or modify the territorial law. Accordingly, it ruled that with Roe v. Wade out of the way, the 1864 criminal ban is fully enforceable. Making it clear it would not brook any claims of confusion as to the risk of prosecution, the court admonished physicians that they were “now on notice that all abortions, except those necessary to save a woman’s life, are illegal … and that additional criminal and regulatory sanctions may apply to abortions performed after fifteen weeks’ gestation.”
Particularly in light of the recent ruling by the Alabama Supreme Court that frozen embryos are persons and the threat this idea of fetal personhood poses to abortion rights (such as they are), it is important to recognize that the court also brought protection for unborn life into its interpretive mix. Declaring it the public policy of the state, the majority justices stressed that Arizona has a separate statute decreeing that its laws shall be “’interpreted and construed to acknowledge on behalf of an unborn child at every stage of development, all rights, privileges and immunities available to other persons, citizens and residents of this state.’”
The court’s abject failure to consider either the contemporaneous historical context of the territorial ban, or the devastating impact that its resurrection will have on abortion-seekers in Arizona, is itself a manifestation of misogyny. To pretend that banning abortion has nothing to do with the actual lives of pregnant persons is to erase a powerful legacy of sex discrimination in the law.
As Attorney General Mayes put it, the decision is “unconscionable and an affront to freedom… and will go down as a stain on our state.”
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