The Archaic Abortion Law Of 1864: What You Need To Know

The 1864 abortion law in Arizona, US, is a near-total ban on abortions, which was reinstated in 2024 after the Supreme Court's Dobbs v. Jackson Women's Health Organization ruling eliminated the constitutional right to abortion. The law, which was passed before Arizona became a state, makes performing an abortion a felony punishable by two to five years in prison. The only exception is when the pregnant person's life is in danger. The law was upheld by the Arizona Supreme Court in April 2024, with a 4-2 majority, and went into effect 14 days later.

The 1864 abortion law was passed before Arizona became a state

The 1864 abortion law in Arizona has its roots in territorial-era legislation, predating Arizona's statehood. At the time, the Arizona Territory was governed by the New Mexico Territorial Legislature, which passed the abortion law as part of a broader criminal code.

This law, enacted in 1864, made it a criminal offense for any person to provide or administer drugs or use any instrument with the intent to procure an abortion. It was a comprehensive piece of legislation that sought to prohibit abortion practices and protect fetal life. The law criminalized not just the act of abortion but also the provision of abortion-inducing drugs and the use of any instrument that could cause an abortion.

The 1864 abortion law was a reflection of the social and cultural values of the time, which prioritized fetal life and sought to protect it through legal means. It was also a response to the concerns of the growing medical community, which advocated for regulations to address the potential dangers associated with abortion procedures. By criminalizing abortion, the law aimed to deter people from seeking or providing abortions, thereby reducing the incidence of abortion and protecting what was considered fetal life.

It's important to note that this law was passed before Arizona became a state in 1912. As a territory, Arizona operated under the jurisdiction of the New Mexico Territorial Legislature, which had the authority to enact laws governing the region. The law remained in force even after Arizona achieved statehood, continuing to shape abortion-related policies and practices in the state.

The law makes abortion a felony punishable by two to five years in prison

The 1864 abortion law is a historic piece of legislation that has had a significant impact on abortion rights and access in the United States. This law, passed in the midst of the Civil War, criminalized abortion and set the stage for decades of restrictive abortion policies. One of the most crucial aspects of the 1864 abortion law is the provision that "the law makes abortion a felony punishable by two to five years in prison." This section of the law had far-reaching consequences and shaped the abortion landscape for generations. By classifying abortion as a felony, the law not only carried severe penalties for those who underwent the procedure but also for anyone who provided or assisted with abortions.

Medical professionals, including doctors and nurses, faced the risk of incarceration and loss of their licenses if they performed abortions or provided related services. This deterrent effect was intentional, as the law sought to discourage and prevent abortions from taking place. The criminalization of abortion also had the effect of driving the procedure underground. Without access to safe and legal options, many individuals seeking abortions turned to unsafe and illegal methods. This put their health and lives at risk, as these procedures were often performed by untrained individuals in unsanitary conditions.

The punishment specified in the 1864 abortion law, two to five years in prison, was designed to be a strong deterrent. This sentence length reflected the seriousness with which society viewed abortion at the time. It also meant that individuals convicted of abortion-related offenses often faced lengthy prison terms, disrupting their lives, careers, and families. The law's impact extended beyond the individuals directly involved in abortion procedures. The threat of felony charges and prison time also affected those who might provide support or assistance to someone seeking an abortion.

Family members, friends, or partners could potentially be implicated and face legal consequences, creating a chilling effect on abortion-related discussions and support networks. The 1864 abortion law, with its felony provision, represented a significant step in the regulation and restriction of abortion rights in the United States. It set a precedent for criminalizing abortion and contributed to a climate where accessing safe and legal abortion services became increasingly difficult. While there have been subsequent legal challenges and changes to abortion laws, the foundation laid by this law continues to influence abortion-related policies and debates in the country.

The Arizona Supreme Court upheld the law in April 2024

In April 2024, the Arizona Supreme Court upheld a near-total ban on abortions, making the procedure illegal in almost all circumstances in the state. The ruling came as a shock to many reproductive rights advocates and was celebrated by anti-abortion groups. The law, passed in 1864, was upheld in a 4-2 decision, with the majority stating that a 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion, which had been eliminated by the U.S. Supreme Court two years prior.

The Arizona Supreme Court's decision to uphold the 1864 law was based on the argument that the 2022 law did not independently authorize abortion and, therefore, the earlier law could be enforced. This interpretation was contested by some justices, who argued that the 2022 law was meant to restrict, not ban, abortion. The ruling has significant implications for reproductive health care in Arizona, with doctors facing prison sentences for performing abortions except in life-threatening situations.

The law was set to go into effect 14 days after the ruling, but there was uncertainty regarding the timeline as various groups offered differing opinions on when enforcement could begin. The ruling sparked political reactions, with Arizona's Democratic Governor Katie Hobbs calling it a "dark day" for the state and anti-abortion groups celebrating the decision. Hobbs and other reproductive rights advocates pushed for a ballot measure to enshrine abortion access in the state constitution, which was expected to appear on the ballot in November 2024.

The law is set to go into effect 59 days after the ruling

In April 2024, the Arizona Supreme Court ruled to make abortion largely illegal in the state, reinstating a 160-year-old law that forbids all procedures except those to save a woman's life. This ruling will go into effect in 59 days.

The 1864 law, which was first adopted when Arizona was a territory during the drafting of its first set of criminal codes, was recodified in 1901, 1913, 1928, and again in 1977. The law was considered unenforceable after Roe v. Wade in 1973, which decriminalized abortion nationwide. However, the 2022 Supreme Court ruling in Dobbs v. Jackson Women's Health Organization eliminated the federal constitutional right to abortion, and this set the stage for the Arizona Supreme Court's recent decision.

The ruling was made in a 4-2 split decision, with Justice John R. Lopez IV writing for the court that a 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion, which no longer remains. Therefore, the 1864 law, which bans all abortions except those necessary to save a woman's life, is now enforceable.

The ruling has sparked strong reactions from both supporters and opponents of abortion rights. Arizona Attorney General Kris Mayes called the ruling "unconscionable" and "an affront to freedom," while anti-abortion groups celebrated the decision. The ban will go into effect 59 days after the ruling, and reproductive rights advocates are concerned about the impact on women's healthcare access.

There are no exceptions for rape or incest

The 1864 abortion law in Arizona, US, makes performing an abortion a felony. The law was passed decades before Arizona became a state in 1912. It was codified in 1901 and again in 1913. The law outlaws abortion from the moment of conception but includes an exception to save the pregnant person's life. There are no exceptions for rape or incest.

The law was upheld by the Arizona Supreme Court in April 2024, which ruled that the law was enforceable. This ruling was made in the context of a legal battle between two abortion laws in the state: the 1864 law and a 15-week abortion ban passed in 2022. The 2022 law was signed by then-Governor Doug Ducey, who called it a "thoughtful conservative approach" to the issue.

The 1864 law states that anyone who "provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life" can be punished by imprisonment "for not less than two years nor more than five years".

The Arizona Supreme Court's ruling was criticised by politicians on both sides of the aisle, including President Joe Biden, who called it "cruel" and "a result of the extreme agenda of Republican elected officials". Biden's vice president, Kamala Harris, travelled to Arizona following the ruling "to continue her leadership in the fight for reproductive freedoms". Arizona's current governor, Katie Hobbs, also opposed the ruling, calling it a "dark day in Arizona" and urging lawmakers to repeal the 1864 law.

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