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Here are some other laws in effect in Arizona in 1864

Arizona came into being in February 1863, just halfway through the Civil War. President Abraham Lincoln, after signing the act creating the new territory, appointed judges to administer it. Among them was a native New Yorker, William T. Howell.

The appointed governor, John Goodwin, quickly determined that the laws established at the territory’s founding (imported from New Mexico) were not working. He commissioned Howell to draft Arizona’s first set of laws and procedures, a job Howell began with the help of a former Wisconsin governor, Coles Bashford. In late 1864, the Howell Code, Arizona’s first set of laws, was born.

And on Tuesday, its original ban on abortion became Arizona’s legal standard again.

The Arizona Supreme Court’s decision to reinstate that original ban sparked a huge backlash and raised difficult political questions for Republicans nationally and in the state. It also sparked much mockery over how archaic the law was, given the year it originated. California Governor Gavin Newsom (D), for example, underlines that Arizona relied on dirt roads when the territorial legislature passed the Howell Code.

These particular complaints, however, miss the point. It is not because the law is old that it is currently doubtful. After all, the Bill of Rights is old and contains rules and guidelines worth maintaining. Instead, the point is that the Howell Code was a product of its time and times. moralitya point that becomes even more evident when considering other elements of the law that are clearly not consistent with the 2024 beliefs.

The most obvious difference between today and that time that is reflected in the Howell Code is that the United States was, at the time, at war with Southern secessionists who were desperate to maintain the institution of slavery. (Coincidentally, Tuesday also marked the anniversary of the South’s final surrender.) Slavery was not permitted in Arizona, but the Howell Code recognizes it as a legal matter. Article 55 of Chapter 10 (“Crimes and Punishments”) prohibits inciting blacks to leave Arizona in order to be able to sell them as slaves.

The ban on abortion comes a little before, just after the article prohibiting duels. Article 45, initially focused on making intentional poisoning a crime, also establishes the ban on abortion:

“(E) any person who administers or causes to be administered or taken medicinal substances, or uses or causes to be used any instruments, with intent to induce the abortion of a woman who is then pregnant, and is 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: provided that no doctor is affected by the last clause of this article, who, in the exercise of his functions his professional duties deem it necessary to induce the miscarriage of any woman in order to save her life.

This is the origin of the law which remains in force.

Consider, however, the other prohibitions that surround Howell’s initial language. A little earlier, for example, the code establishes what constitutes murder or manslaughter. In section 34, it also creates the category of “excusable homicides”. These include situations such as “a man works with an ax, and the head flies off and kills a passerby” or “a parent moderately corrects his child, or a master his servant or scholar.” Only when this correction is “moderate”, mind you. Exceed the limits of the moderation fix and you will be subject to higher fees.

Article 38 offers another assessment of pregnancy.

“If a woman endeavors, in private, either by herself or through another, to conceal the death of a member of her body, male or female, who, if born alive , would be a bastard, so that it does not occur To know, whether she was murdered or not”, we can read, “any mother found guilty of such murder will be sentenced to a term of imprisonment in the county jail for a term not exceeding one year. »

In other words, if you got pregnant out of wedlock and had a miscarriage – then covered it up – you could go to jail for a year.

In section 47, the Howell Code addresses rape, which is defined as “carnal knowledge of a woman, forcibly and against her will.” It also provides sanctions for having “carnal knowledge with a girl under ten years of age, with or without her consent”. To clarify, the “consent” in question allegedly came from a 9-year-old child.

Many penalties for criminal acts result in execution. There is even a stipulation that those who “by willful and corrupt perjury or subornation of perjury” cause someone to be convicted and executed for a crime could themselves be subject to the death penalty.

Here again we encounter a specific rule focused on women. If there was “good reason” to believe that a convicted woman was pregnant, the Code said, the sheriff could ask a panel of three doctors to determine her status to the best of their ability. If she was not pregnant, she was executed. If so, she was allowed to live – until she gave birth, at which point the governor could move up the execution again.

There are other reminders that this is a border-centric legal framework, from penalties for refusing to join a group to rules governing citizen’s arrests. There is also an interesting process in place to hold elected officials accountable. The Howell Code establishes that third parties can bring charges of misconduct against serving officials, thereby requiring those officials to appear at a hearing. If admitted, a jury trial would follow and could lead to impeachment. It’s safe to say that some prominent elected officials would prefer that this not be the national standard.

Tuesday’s ruling by the Arizona Supreme Court did not immediately return the state’s abortion law to the standard established in 1864, allowing two weeks for challenges. However, if these challenges fail, Arizona women could face criminal penalties for seeking an abortion, consistent with the mores of a 19th-century society in which parents were allowed to accidentally beat their children to death and 9-year-old children were considered victims. capable of giving consent to sexual relations.

washingtonpost

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