The 1864 Abortion Law: Who Was Behind It?

In April 2024, the Arizona Supreme Court ruled that a near-total abortion ban from 1864 was enforceable, causing an uproar among reproductive rights advocates. The law, part of the Howell Code, was written by William T. Howell, a native New Yorker, and passed by the 1st Arizona Territorial Legislative Assembly, which was led by William Claude Jones. The law, which was adopted in 1901, 1913, 1928, and 1977, makes it a felony, punishable by two to five years in prison, to perform an abortion or help a woman obtain one.

Arizona Supreme Court Justice Clint Bolick helped revive the 1864 abortion law

Arizona Supreme Court Justice Clint Bolick helped revive an 1864 abortion law that banned nearly all abortions in the state. The law, which was enacted when Arizona was still a territory, made the procedure illegal except when necessary to save a woman's life.

In April 2024, Justice Bolick was one of four justices who voted to reinstate this near-total ban, shocking the state and causing a political uproar. The ruling was made by a 4-2 majority, with Justices John R. Lopez IV, James Beene, Kathryn King, and Bolick in favour, and Chief Justice Robert Brutinel and Vice Chief Justice Ann Timmer dissenting.

Justice Bolick defended his decision, arguing that the court was simply following the law. He claimed that the ruling was solidly grounded in law and that the only legal question before the court was whether the Arizona Legislature had restored the 1864 law when it enacted new abortion restrictions in 2022.

The ruling sparked a backlash, with critics calling for Justice Bolick and Justice King, who is also up for reelection, to be removed from the bench. Liberal activist group Progress Arizona led the charge, stating that when the court puts "ideology over the people," it becomes a "civic duty" to replace the justices.

Justice Bolick, however, decried these efforts, accusing his critics of hijacking the retention process and warned that a politically driven retention system would be "game-over for the rule of law." He also argued that partisan special-interest" groups targeted him and Justice King because they were "politically objectionable."

The revived 1864 abortion law caused a stir in Arizona, with Democratic Governor Katie Hobbs urging the state legislature to take immediate action to undo the ban. The repeal effort gained momentum, and in May 2024, the state legislature voted to repeal the law, with Bolick's wife, Republican state Senator Shawnna Bolick, joining the Democrats in this effort. The repeal bill was signed into law by Governor Hobbs, marking a significant development in the ongoing battle over abortion rights in Arizona.

His wife, Arizona Sen. Shawnna Bolick, joined Democrats to repeal it

In May 2024, Arizona Sen. Shawnna Bolick, a Republican, joined Democrats in the Arizona Senate to vote to repeal an 1864 law banning almost all abortions. Her husband, Arizona Supreme Court Justice Clint Bolick, had been part of the majority that voted in April 2024 to restore the near-total ban.

Shawnna Bolick's vote to repeal the law was informed by her personal experience with difficult pregnancies, including one that ended in miscarriage. In an emotional speech on the Senate floor, she described how she wouldn't have gotten through it without the support of her husband. She also stated that she was "pro-life" and wanted to protect more babies.

Shawnna Bolick's vote underscored the increasingly chaotic philosophical and legal landscape surrounding abortion access in Arizona and reflected national Republicans' struggle to navigate abortion politics during an election year. The vote also put her and her husband, who is seeking another term on the bench, in the crosshairs of voters and conservative critics.

The repeal of the 1864 abortion law in Arizona was part of a broader effort to protect reproductive health care in the state. Democratic Gov. Katie Hobbs, who had urged the state legislature to take action to undo the ban, signed the repeal bill into law, calling it a step towards protecting reproductive freedoms.

The law bans nearly all abortions except when a woman's life is in danger

The 1864 abortion law, which enacted strict prohibitions on the practice, was drafted by Lord Chief Justice Sir Alexander Cockburn. This law, still in effect in Britain today, criminalizes abortion and sets out stringent penalties for those who perform or assist in the procedure. The Offences Against the Person Act 1861, which covered abortion, was amended by Cockburn's legislation, formally known as the "Act to Amend the Law relating to Abortion." The law bans nearly all abortions except when a woman's life is in danger, marking a significant shift from the more lenient approach taken by the 1803 Abortion Act.

Under the 1864 law, abortion is defined as 'unlawfully administering any poison or other noxious thing, or unlawfully using any instrument or other means with the intent to procure the miscarriage of any woman, whether she is or is not with child.' The key phrase 'with intent to procure miscarriage' leaves little room for interpretation, effectively outlawing all abortions, regardless of the circumstances, except when necessary to save the life of the pregnant woman. This strict definition reflects the Victorian-era moral values and beliefs that influenced Cockburn and his contemporaries.

The law stipulates that anyone found guilty of performing or assisting with an abortion is liable to be 'indicted and convicted of felony,' facing a maximum penalty of life imprisonment. Even if the pregnancy is the result of rape or incest, there are no exceptions provided in the legislation. The only exception, as stated, is when a woman's life is at risk, and the abortion is performed to save her. In such cases, it is considered justifiable homicide, and those involved are exempt from prosecution.

Cockburn's law also addresses the issue of 'unlawfully supplying drugs or instruments for the purpose of procuring abortion.' This clause prohibits the provision or sale of any drugs or instruments that could be used to induce abortion, with a maximum penalty of two years' imprisonment. This aspect of the law not only targets those directly involved in the abortion process but also seeks to deter and punish those who facilitate it by providing the necessary means.

The far-reaching impact of the 1864 abortion law has been felt for over a century, shaping abortion laws and cultural attitudes in Britain and beyond. While there have been subsequent legal challenges and calls for reform, the fundamental framework established by Cockburn remains in place. The law continues to provoke debate, reflecting the ongoing cultural and ethical discussions surrounding abortion and women's reproductive rights.

In conclusion, the 1864 abortion law, authored by Sir Alexander Cockburn, represents a pivotal moment in the history of abortion legislation. Its near-total ban on abortions, except when necessary to save the life of the pregnant woman, reflects the Victorian-era moral code that influenced its creation. The law's harsh penalties and narrow exceptions have had a lasting impact on abortion access and continue to shape discussions and debates on women's reproductive rights in modern times.

It was first passed in 1864 when Arizona was a territory

The 1864 abortion law in Arizona was first passed in 1864 when Arizona was a territory. The law criminalizes abortion, making it a felony for doctors or medical providers to perform an abortion unless it is necessary to save a woman's life. This law dates back to a time when Arizona was a newly formed US territory, and slavery still existed. Women at the time had no right to vote and were legally subordinate to their husbands.

The 1864 law was re-enacted in 1912 when Arizona achieved statehood and remained in effect until a 1973 injunction following the United States Supreme Court's recognition of the federal constitutional right to abortion in Roe v. Wade. However, in 2022, the Supreme Court eliminated this right in Dobbs v. Jackson Women's Health Organization, which overruled Roe v. Wade.

As a result of the 2022 ruling, Arizona's Supreme Court revived the 1864 law in April 2024, making abortion largely illegal in the state. The Court's decision to uphold the century-old 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 had been eliminated by the Dobbs v. Jackson Women's Health Organization ruling.

The Arizona Supreme Court's ruling to enforce the 1864 law sparked controversy and protests from reproductive rights advocates, who gathered on the steps of the Arizona Supreme Court to speak out against the ban. The law includes no exceptions for rape or incest and only allows abortions performed to save the patient's life.

In response to the Court's decision, Arizona's Democratic Governor, Katie Hobbs, urged the state legislature to take action to undo the ban. Despite initial resistance from Republican lawmakers, who hold a majority in both chambers, the repeal legislation eventually passed with support from a few Republican lawmakers. Hobbs signed the bill in May 2024, declaring her commitment to protecting reproductive freedoms and trusting women to make their own healthcare decisions.

The law was recodified in 1901, 1913, 1928, and 1977

The 1864 abortion law in Arizona, US, was recodified in 1901, 1913, 1928, and 1977. This law, which was first passed when Arizona was a territory during the drafting of its first set of criminal codes, criminalises all abortion procedures except those carried out to save a woman's life.

The law was recodified in 1901, when Arizona was still a US territory. It was recodified again in 1913, one year after Arizona became a state. The law was also recodified in 1928 and 1977, four years after an injunction was erected against it under the protection of Roe v. Wade, which established a federal constitutional right to abortion in the US.

In 2022, the US Supreme Court eliminated the federal constitutional right to abortion in Dobbs v. Jackson Women's Health Organization, which overruled Roe v. Wade. This ruling paved the way for states like Arizona to enforce their own abortion laws, including the 1864 law.

In April 2024, the Arizona Supreme Court ruled to reinstate the 1864 abortion law, 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 Dobbs v. Jackson Women's Health Organization ruling. This decision sparked controversy and was met with protests from reproductive rights advocates, who gathered outside the Arizona Supreme Court to speak out against the ban.

The recodification of the 1864 abortion law in Arizona in 1901, 1913, 1928, and 1977 reflects the state's stance on abortion and its efforts to restrict abortion access over time.

Frequently asked questions