Arizona’s reinstated anti-abortion law of 1864 would have also set the age of consent at 10. Here is the truth
On April 9, 2024, the Arizona Supreme Court issued a 4-2 decision allowing a law banning abortion – in effect before Arizona became a state.
The reaction was immediate. US President Joe Biden issued a statement calling the law, which bans all abortions except those necessary to save the life of the mother and without exception in cases of rape or incest, “extreme and dangerous.” Arizona Republican candidate for U.S. Senate Kari Lake, who previously called the ban “big law” in 2022, reversed course and urged state lawmakers to repeal it. Kris Mayes, Arizona’s attorney general, said she would not enforce the ban.
One particular claim seemed to come up again and again in critiques of the decision. MSNBC anchor Joy Reid, for example, pointed out that when the law was passed in 1864, the age of sexual consent for girls was only 10 years old. A Washington Post article says the same thing. Author Stephen King posted about this on X. But is it true?
(@StephenKing / X)
In 1863, the New Mexico Territory was divided into two territories: New Mexico and Arizona. In 1864, the territorial governor ordered Arizona’s first set of laws, called the Howell Code. In the Howell Code, a specific provision prohibited the practice of inducing miscarriage.
Its wording was updated in 1901 (title IX, chapter 3, articles 243 and 244), but it did not modify the legislative effects. The 1901 version of the law was passed after Arizona became a state in 1912 (Title IX, Chapter 5, Sections 273 and 274). Another restatement of the same law occurred in 1928, but aside from these wording changes, the Howell Code law of 1864 was the same as the law that was challenged in 2024.
Snopes has seen two versions of the claim about Arizona’s age of consent in 1864 circulating online.
At its most vehement, the claim is that the same Howell Code law criminalizing abortion also sets the age of consent for women at 10 years old. It’s wrong. The law in question (Chapter X, Article 45) mentions poisoning and intentionally causing a miscarriage (abortion) but does not mention the age of consent in any way:
SECOND. 45. Any person who willfully and maliciously administers or causes to be administered or taken by any person a poison or other noxious or destructive substance or liquid, with the intention of causing the death of that person, and being duly convicted, will be punished imprisonment in the territorial prison for a period of at least ten years, up to life imprisonment. And any person who shall administer or cause to be administered or taken any medicinal substances, or use or cause to be used any instruments whatsoever, with intent to cause the miscarriage of a woman and then begins with a child, and shall be duly convicted thereof, shall be punished by imprisonment in the territorial prison for a period of not less than two years and not more than five years: it being understood that no doctor shall be affected by the last clause of this article, who, in the exercise of his professional duties, believes it is necessary to induce a miscarriage in a woman to save her life.
This was actually a separate law from the Howell Code, Chapter X, Section 47, which set the age of consent for women at 10 years old. Because they were different laws, the Arizona Supreme Court’s 2024 decision had no effect on the state’s current consent laws. (At the time Arizona became a state in 1912, the age of consent was 18, for the record.)
SECOND. 47. Rape is the carnal act of a woman, forced and against her will. Any person aged fourteen and over, who has carnal knowledge of a girl under ten years of age, with or without her consent, will be found guilty of the crime of rape and will be punished. by a sentence of imprisonment in the territorial prison for a period of at least five years and up to life imprisonment.
The other, more common version was simply that under the Howell Code and the era of the law prohibiting abortion, the age of consent in Arizona was 10 years old. This version of the statement was true.
The same 1864 code of laws (the Howell Code) – but not the same abortion law itself – set the age of consent at 10 years old. Yet any kind of rhetorical argument against bringing archaic laws back into play is still valid – the original version was passed over 150 years ago.
Sources:
13-3603 – Definition; Punishment. https://www.azleg.gov/ars/13/03603.htm. Accessed April 12, 2024.
“Arizona Supreme Court Decision | PDF | Roe V. Wade | Statutory Interpretation.” Scribd, https://www.scribd.com/document/721546641/Arizona-Supreme-Court-abortion-law-ruling. Accessed April 12, 2024.
“The Arizona Supreme Court will enforce the 1864 abortion ban when the age of consent was 10.” MSNBC.Com, https://www.msnbc.com/the-reidout/watch/arizona-supreme-court-upholds-1864-abortion-ban-208672325700. Accessed April 12, 2024.
Bosse, Philippe. “Analysis | Here are some other laws Arizona had on the books in 1864.” Washington PostApril 10, 2024. www.washingtonpost.comhttps://www.washingtonpost.com/politics/2024/04/10/arizona-abortion-law-1864-laws/.
DocumentCloud. https://www.documentcloud.org/documents/24539191-the-howell-code?embed=true&responsive=false&sidebar=false. Accessed April 12, 2024.
Healy, Jack and Kellen Browning. “Arizona reinstates 160-year-old abortion ban.” The New York TimesApril 9, 2024. NYTimes.comhttps://www.nytimes.com/2024/04/09/us/arizona-abortion-ban.html.
House, The White. “Statement from President Joe Biden on the Arizona Supreme Court’s decision to uphold the ban on abortion from 1864.” The White HouseApril 9, 2024, https://www.whitehouse.gov/briefing-room/statements-releases/2024/04/09/statement-from-president-joe-biden-on-arizona-supreme-court-decision-enforce the ban on abortion from 1864/.
“https://Twitter.Com/StephenKing/Status/1778728393535561987.” X (formerly Twitter), https://twitter.com/StephenKing/status/1778728393535561987. Accessed April 12, 2024.
Mutnick, Ally and Megan Messerly. “Kari Lake scrambles to call Arizona lawmakers after abortion ban ruling.” Politico.ComApril 11, 2024, https://www.politico.com/news/2024/04/11/kari-lake-arizona-abortion-ban-00151835.
N et al. “Arizona Attorney General Says She Won’t Enforce 164-Year-Old Abortion Law.” NPRApril 12, 2024. NPRhttps://www.npr.org/2024/04/12/1244265593/arizona-attorney-general-says-she-wont-enforce-a-164-year-old-abortion-law.
Revised_Statutes_of_Arizona_1901.Pdf | Powered by Box. https://arizona.app.box.com/v/Revised-Statues-Arizona-1901. Accessed April 12, 2024.
“Today in History – February 24.” Library of Congress, Washington, DC 20540 United States, https://www.loc.gov/item/today-in-history/february-24/. Accessed April 12, 2024.
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