The Arizona Supreme Court opened a new front in the war over women’s reproductive rights last week when it Revived an obscure 1864 law that bans abortion In almost all cases. Critics of the decision say the court singled out Arizona. back in the 19th century,
This is not entirely appropriate for the 19th century.
The irony of last week’s reactionary decision is that the author of the Basic Law, William T. Howell, Was progressive according to the standards of his time. The politics of Arizona’s current judges bear little resemblance to those of the 19th-century predecessors on whom their rulings depend.
Although many of Howell’s ideas are not very old, she argued against the prevailing patriarchal dogma of the era and in favor of women’s property rights. Even his abortion legislation was guided by concerns about maternal health, not the right-wing, religious conservatism that motivates the anti-abortion movement today.
If 19th century legal precedent is important, so is the historical context. As today’s lawyers and politicians battle over the future of abortion rights, they should understand how and why the original Arizona law came to be. The law emerged from the turmoil of the Civil War and its little-known front in the West.
As a history professor and author of a Book On this subject, I never imagined that Howell would become a posthumous standard-bearer for the modern American right. If he is known at all, it is as an agent of Abraham Lincoln’s campaign to end slavery in the Southwest and secure Union control over the territory.
He the story began In the spring of 1861, when a group of immigrants from neighboring Texas seized power in southern New Mexico. Declaring their affinity for the slaveholding South, they seceded from the Union and renounced their allegiance to the newly formed Confederacy. They named their new rebel territory “Arizona”.
Several months later, the Confederacy launched its first offensive of the war – into the southwest. The rebel invaders defeated American troops in several battles, gained military control of Arizona, and captured Santa Fe, the capital of New Mexico. They then planned to march on the gold fields of California.
He never made it. In the spring of 1862, Union troops sabotaged the Confederate supplies and ultimately drove them back to Texas.
Congress divided the territory into a western half (Arizona) and eastern half (New Mexico), dividing the then-federal Arizona Territory. To strengthen the Union’s tenuous hold, Lincoln added Federal troops and agents to the region. One of them was Howell, who was appointed Associate Justice of the Territorial Supreme Court of Arizona.
An experienced jurist and former Michigan legislator, Howell got the chance to work on a new code of laws for Arizona. The final document, now known as the Howell Code, was approximately 500 pages long. One of its primary purposes was to ensure that slavery could never again take root in Arizona.
Buried within it was the now infamous abortion ban. The provision was not an external one. In fact, it was copied From the California legal code, one of many such laws Passed by states and territories in the 1860s and 70s.
From the colonial era to the early 19th century, abortion was commonly administered and rarely considered a crime. Including Benjamin Franklin a recipe For abortion in, of all places, a math textbook. Before abortion was considered “accelerated” within approximately the first four or five months of pregnancy, it was considered “the women’s circleAccording to historian Sarah Handley-Cousins, rather than by law. Even the Catholic Church”clearly acknowledgedHistorian Leslie J. Reagan mentioned, “Abortion before promptness.”
Again, the Howell Code marked a departure from a more permissive approach to abortion. Nevertheless, anti-abortion laws of the mid-19th century were generally born out of a serious concern women’s Health He is absent from today’s law. Apparently, Arizona’s original anti-abortion clause appeared within a provision on toxicosis. The underlying premise was that abortion threatened the health of women, who were viewed as victims and not held legally liable for medical procedures performed on them.
At the time, Howell himself had the health of a woman in mind. Soon after drafting the Code, he moved back to Michigan to be near his ailing wife. She survived, and Howell remained in Michigan, and never saw his code put into practice.
The judge had previously defended the right of women to own property in their own names rather than under their husbands. He also advocated free public schools and opposed the death penalty (however). Execute was allowed for certain offenses under the Howell Code).
Howell is no progressive poster child by today’s standards. He was in many ways a man of his times. And their code, which was hastily written in their makeshift courtroom—a hut adjacent to a horse barn—reflected some of the prevalent prejudices of the early American frontier, which influenced many people. restrictions On people who were not white.
Yet Howell is a strange precursor to today’s anti-abortion movement. If Arizona’s 21st-century Supreme Court justices want to banish an obscure 19th-century predecessor from the pages of history, that’s their prerogative. But he should understand that he too is confused by his extremist politics.
Kevin Waite is Associate Professor of History at Durham University and author of “West of Slavery: The Southern Dream of a Transcontinental Empire”.
