The Arizona abortion law of 1864
10 April 2024
Historian Heather Cox Richardson has an interesting review of the 1864 abortion law that will soon be in effect in Arizona.
It was written by one white male Judge at a time when women could not vote and Arizona was not a state. It described miscarriages, not abortions, and was intended to restrain the passions of men - the law was not primarily about healthcare. It was a time when the age of consent for sex was 10 years old and the legislature promoted discrimination:
The legislature provided that “[n]o black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to [testify in court] against any white person,” thus making it impossible for them to protect their property, their families, or themselves from their white neighbors. It declared that “all marriages between a white person and a [Black person], shall…be absolutely void.”
In 1864, Arizona was not a state, women and minorities could not vote, and doctors were still sewing up wounds with horsehair and storing their unwashed medical instruments in velvet-lined cases.
And, of course, the United States was in the midst of the Civil War.
In fact, the 1864 law soon to be in force again in Arizona to control women’s reproductive rights in the twenty-first century does not appear particularly concerned with women handling their own reproductive care in the nineteenth—it actually seems to ignore that practice entirely. The laws for Arizona Territory, chaotic and still at war in 1864, appear to reflect the need to rein in a lawless population of men.
The 1864 Arizona criminal code talks about “miscarriage” in the context of other male misbehavior. It focuses at great length on dueling, for example—making illegal not only the act of dueling (punishable by three years in jail) but also having anything to do with a duel. And then, in the section that became the law now resurrected in Arizona, the law takes on the issue of poisoning.
In that context, the context of punishing those who secretly administer poison to kill someone, it says that anyone who uses poison or instruments “with the intention to procure the miscarriage of any woman then being with child” would face two to five years in jail, “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.” Source
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