The Arizona Supreme Court last week opened a new front in the war against women's reproductive rights when resurrected an obscure 1864 law banning abortion In most of the cases. Critics of the ruling say the court has dismissed Arizona back to the 19th century.
That's not entirely fair for the 19th century.
The irony of last week's reactionary ruling is that the author of the original law, William T. Howell, He was a progressive by the standards of his time. The politics of Arizona's current judges bear little resemblance to the 19th century precedent on which their ruling is based.
Although many of Howell's opinions have aged poorly, she argued against the prevailing patriarchal dogma of the time and in favor of women's property rights. Even her abortion law was guided by concerns about maternal health, not the right-wing religious orthodoxy that animates much of today's anti-abortion movement.
If 19th century legal precedent is important, so is historical context. As today's lawyers and politicians fight for the future of abortion rights, they must understand how and why Arizona's original law came about. The statute arose from the turmoil of the Civil War and its front that was little known in the West.
As a history teacher and author of a book On this issue, I never expected Howell to become a posthumous standard-bearer for the modern American right. If he is known, he is as an agent of Abraham Lincoln's campaign to eradicate slavery in the Southwest and secure Union control in the region.
That the story began in the spring of 1861, when a group of immigrants from neighboring Texas took power in southern New Mexico. Proclaiming their affinity for the slaveholding South, they broke with the Union and supported loyalty to the newly formed Confederacy. They called their new rebel territory “Arizona.”
Several months later, the Confederacy launched its first invasion of the war: toward the southwest. The rebel invaders defeated American troops in several battles, secured military control over Arizona, and seized Santa Fe, the capital of New Mexico. They then planned to march on the California gold fields.
They never made it. In the spring of 1862, Union troops sabotaged Confederate supplies, eventually sending them back to Texas.
Congress then divided the region into a western half (Arizona) and an eastern half (New Mexico), dividing the former Confederate Territory of Arizona. To strengthen the Union's fragile hold, Lincoln sent federal troops and agents to the region. One of them was Howell, a newly appointed associate justice of the Arizona Territorial Supreme Court.
Howell, a veteran jurist and former Michigan legislator, set to work on a new code of laws for Arizona. The final document, now known as the Howell Code, was nearly 500 pages long. One of its primary purposes was to ensure that slavery would never again take root in Arizona.
Buried within it was the now infamous abortion ban. The arrangement was not atypical. In fact, it was copied of the California legal code, one of many such laws passed through states and territories in the 1860s and 1870s.
From colonial times until the early 19th century, abortions had been commonly administered and rarely criminalized. Benjamin Franklin even included a recipe for an abortifacient in a mathematics textbook, of all places. Abortions before “acceleration” (approximately within the first four or five months of pregnancy) were considered “the women's field”instead of the law, according to historian Sarah Handley-Cousins. Even the Catholic Churchimplicitly accepted“Abortions before acceleration,” historian Leslie J. Reagan has noted.
The Howell Code, then, marked a move away from a more permissive approach to abortion. Still, the anti-abortion laws of the mid-19th century were generally born out of sincere concern for women's health something that is not present in current legislation. Tellingly, Arizona's original anti-abortion provision appeared within a poisoning provision. The underlying premise was that abortions posed health risks to women, who were seen as victims and not held legally responsible for the medical procedures performed on them.
Howell himself had a woman's health on his mind at the time. Shortly after writing the code, he rushed back to Michigan to be at the bedside of his sick wife. She survived and Howell remained in Michigan, never seeing his code put into practice.
The judge had previously upheld women's right to own property in their own name rather than being subsumed under that of their husband. She also advocated for free public schools and opposed capital punishment (although executions were allowed for certain crimes under the Howell Code).
Howell is not a progressive model by today's standards. In many ways he was a man of his time. And his code, hastily written in his makeshift courtroom (an adobe hut adjacent to a horse corral) reflected some of the prejudices prevalent on the early American frontier, imposing numerous restrictions in people who were not white.
But Howell is nonetheless an uncomfortable precedent for today's anti-abortion movement. If 21st-century Arizona Supreme Court justices wish to exhume an obscure 19th-century predecessor from the recesses of history, that is their prerogative. But they should understand that even he is not aligned with his extreme politics.
Kevin Waite is associate professor of history at Durham University and author of “West of Slavery: The Southern Dream of a Transcontinental Empire.”
