The Abortion Act Of 1864: A Historical Perspective

The 1864 abortion law in Arizona, US, was reinstated in April 2024 after the state's Supreme Court ruled that a 2022 law allowing abortions up to 15 weeks of gestation depended on a federal constitutional right to abortion. As this right was eliminated in the 2022 Dobbs v. Jackson Women's Health Organization ruling, the 1864 law, which forbids all procedures except those to save a woman's life, was enforceable once more. The law makes performing or helping a pregnant person obtain an abortion a felony punishable by two to five years in prison. There are no exceptions for cases of rape or incest.

The 1864 abortion law was passed before Arizona became a state

The 1864 abortion law in Arizona was passed before Arizona became a state in 1912. The law, which was enacted during the Civil War, made abortion illegal in almost all cases, except when the mother's life was in danger. This meant that women in Arizona had very limited access to abortion and had to resort to dangerous and often life-threatening methods to terminate their pregnancies.

The law was first adopted in 1864 when Arizona was still a territory and was later recodified in 1901, 1913, 1928, and 1977. However, it was not enforced for much of its history due to the U.S. Supreme Court's Roe v. Wade decision in 1973, which guaranteed the constitutional right to abortion nationwide.

In 2022, the U.S. Supreme Court overturned Roe v. Wade, which gave states the power to regulate abortion. This led to a battle in Arizona over whether to enforce the 1864 abortion law. The state's Supreme Court initially ruled in April 2024 that the law could be enforced, sparking outrage and protests from abortion rights advocates.

The 1864 law was supported by anti-abortion groups and some Republican lawmakers in the state. However, there was also significant opposition to the law, even from some Republicans. The law was denounced by Arizona Governor Katie Hobbs, who called for its immediate repeal. She argued that the law was passed before women even had the right to vote and that it was the state's duty to protect reproductive freedoms.

In May 2024, Governor Hobbs signed a bill into law that officially repealed the 1864 abortion ban. The new law allowed abortion in Arizona with certain restrictions, such as a 15-week gestational limit. This repeal was a victory for abortion rights advocates and provided legal clarity for medical providers in the state.

The battle over abortion rights in Arizona continues to be a contentious issue, with voters expected to have a say on the matter in the upcoming elections. The outcome will have a significant impact on the accessibility of abortion in the state and the protection of reproductive rights for women in Arizona.

The law makes performing an abortion a felony

The 1864 abortion law, which was reinstated by the Arizona Supreme Court in April 2024, makes performing an abortion a felony. The law, which was passed before Arizona became a state, makes it a felony to "procure a miscarriage" unless it is necessary to save the pregnant person's life. The law will come into effect 59 days after the ruling and will make it a felony for doctors to perform abortions for any reason other than saving a patient's life.

The law states that:

> A person 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, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.

The Arizona Supreme Court's decision to uphold the 1864 law was based on the argument that a 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion, which was eliminated by the U.S. Supreme Court in 2022. As a result, the court ruled that the 1864 law, which was first adopted when Arizona was a territory, is now enforceable.

The ruling has been met with opposition from lawmakers on both sides of the aisle, including President Biden, who criticised the decision as part of the "extreme" Republican agenda. The law will effectively close abortion clinics in the state, but it is not yet known how it will be enforced. Voters in Arizona will have the opportunity to remove the restrictions via a ballot measure in November 2024.

There are no exceptions for rape or incest

The 1864 abortion law in Arizona, which was reinstated in 2024, makes performing an abortion a felony. The law includes no exceptions for rape or incest and only allows abortions to save the patient's life. The law states that "a person who provides, supplies or administers to a pregnant woman, or procures such a 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, shall be punished by imprisonment in the state prison for not less than two years nor more than five years."

The lack of exceptions for rape or incest in the 1864 abortion law has significant implications for victims of sexual violence. It means that individuals who become pregnant as a result of rape or incest are not legally permitted to have an abortion unless their life is in danger. This can lead to further trauma and distress for victims, forcing them to carry unwanted pregnancies to term or seek unsafe alternatives.

The absence of exceptions also contradicts the principle of bodily autonomy and self-determination, which is a fundamental aspect of human rights. It denies individuals the right to make decisions about their own bodies and reproductive health, even in cases of sexual violence.

The lack of exceptions in the 1864 abortion law has sparked widespread criticism and opposition. Many have argued that it is inhumane and violates the rights of victims of rape and incest. There have been calls for the law to be amended to include exceptions for these cases, reflecting a recognition of the unique circumstances and trauma experienced by these individuals.

The exclusion of rape and incest exceptions in the 1864 abortion law also has practical implications for healthcare providers. Doctors and abortion clinics must navigate a complex legal landscape, as they are bound by the law while also striving to provide care for their patients. This can create a challenging situation, especially in emergency situations where the patient's life is not in immediate danger but they are seeking an abortion due to rape or incest.

The lack of exceptions in the 1864 abortion law has also led to political debates and efforts to amend the law. There have been attempts to repeal the law entirely or introduce amendments to include exceptions for rape and incest. These efforts reflect a recognition of the law's shortcomings and the need to provide support and options for victims of sexual violence.

The law will close abortion clinics in Arizona

The 1864 abortion law is a near-total ban on abortion in Arizona that was passed when the state was still a territory. In April 2024, the Arizona Supreme Court ruled to uphold this law, making abortion illegal in every case except to save a woman's life. This ruling was made in a 4-2 split decision, with Justice John R. Lopez IV writing for the court that the 2022 law allowing abortions up to 15 weeks of gestation depended on the existence of a federal constitutional right to abortion, which was eliminated by the Dobbs v. Jackson Women's Health Organization ruling two years prior.

The consequences of this ruling were instantaneous and severe. An uncertain legal landscape led to the majority of the state's nine abortion clinics providing intermittent services for months. Women were cut off from potentially life-saving care, and the abortion rate in Arizona saw record lows in 2022. The law carries a 2- to 5-year mandatory prison sentence for doctors who perform abortions for any reason other than saving a patient's life.

Reproductive rights advocates are concerned that a return to a near-total ban will result in uneven healthcare access for women, as those who can afford to leave the state to seek abortions elsewhere will do so, while those who cannot will be forced to continue with unwanted or dangerous pregnancies.

The Arizona Attorney General, Kris Mayes, called the ruling "unconscionable" and "an affront to freedom", and Governor Katie Hobbs vowed to continue working to protect access to abortion. Reproductive rights groups are aiming to stave off threats from court rulings and GOP-backed laws by enshrining abortion access in the state constitution in November 2024.

The law can be removed by voters via a ballot measure

The 1864 abortion law in Arizona, which was reinstated in April 2024, makes performing an abortion a felony. The law, which was passed before Arizona became a state, includes no exceptions for rape or incest and only allows abortions to save a woman's life. The law was reinstated after the U.S. Supreme Court eliminated the constitutional right to abortion, sending the power to regulate the procedure back to the states.

The ballot initiative is being opposed by the It Goes Too Far Campaign, which argues that the proposed amendment is too extreme. However, Democrats in Arizona and across the country are counting on the abortion issue to mobilize voters and deliver wins for party candidates.

The ballot measure could shift the narrative on abortion in the United States, as it would be the first time that a state has legalized abortion through a vote of the people.

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