Robbins: Arizona’s new, old abortion law
The State of Arizona was admitted to the Union as the 48th state in 1912. As may seem ironic in a moment, its admission date was February 14 — Valentine’s Day.
Its indigenous heritage notwithstanding, Arizona was originally claimed as part of the Spanish and then Mexican territories. The land was ceded by Mexico to the United States in 1848 and became a separate territory in 1863. What the state is perhaps best known for is the Grand Canyon, a great gulf in the land.
During the American Civil War, the Territory of Arizona, which consisted of parts of the modern states of Arizona, New Mexico, and the bit of Nevada that includes Las Vegas, was claimed by the Confederacy. The territory was officially declared on August 1, 1861, following the Confederate victory at the Battle of Mesilla, the territory’s temporary capital. The Confederate hold in the area was, however, soon broken, after the Battle of Glorieta Pass. Yet, the territory continued to be represented in the Confederate Congress and Confederate troops continued to fight under the Arizona banner until the war’s end.
As the war neared its end, President Lincoln claimed the territory for the Union and appointed Arizona’s Territorial officials. Thus it remained — as a territory but not a state — for the next 45 years until it at last achieved statehood. As an interesting bit of arcana, the state — followed only by Alaska and Hawaii — was the last among the contiguous United States to succeed to statehood.
First passed in 1864 — 160 years ago — and codified again in 1901 and 1913, Arizona’s abortion law which was recently upheld by the state’s supreme court, holds that anyone who “provides, supplies or administers” an abortion or abortion drugs will face a state prison sentence of two to five years unless the abortion is necessary to save the life of the woman who is pregnant.
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Taken out of the context of the times in which it was passed, the law’s language suggests a near-total ban on abortion. But that’s not how the law was originally enforced. In fact, few were prosecuted under the law or similar laws in other states.
Though it may seem strange now to our sensibilities — abortion rights seemingly have arisen in tandem with the women’s rights movement of the 1960s and ’70s — in fact, in mid-19th century America, first-trimester abortions were both common and generally accepted. Oddly too, to what may be our perception of the increasing liberalism of our modern ideals, religion was not yet a significant factor in what was then a fairly tame and mild abortion debate. In fact, there was little national debate at all. Too, science had not yet developed reliable methods to detect pregnancy during the first months of gestation and rather than a religious or moral abomination, abortion was accepted in the tradition of British common law; it was only a crime after “quickening,” when a fetus’s movement could be detected — around four or five months after conception.
As self-interest and ulterior motive always seems to creep in through any policy’s side door, the law was also colored by the tinge of racism which the War did little if anything to end and the companion desire to boost white women’s birth rates. Although the women’s rights movement fairly exploded in the 1960s and ’70s, small feminist temblors preceded its final blooming and the law was intended, at least in part, to dampen down the nascent feminist upheaval.
Despite what the old laws might suggest, what all this amounted to was that in the mid-19th century, abortion was a common, if not always safe, part of American life. Generally, if abortion was avoided it was more on grounds that it was unsafe rather than because it was illegal. Before quickening, the American public generally had few moral qualms about abortion. In particular, many believed it should be freely offered to unmarried women who often came from poor backgrounds and whose reputations might be besmirched by an out-of-marriage birth.
But around the mid-1800s, things began to shift. More women began to seek abortions, not just the unmarried. Perhaps as many as one in five pregnancies ended in abortion and in the century between 1800 and 1900, the birth rate halved. Thus, the law arose.
As now upheld by the Arizona Supremes, the law orders prosecution for “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.” The Court suggested in its ruling, but didn’t provide outright, that physicians can be prosecuted for their proscribed involvement.
“In light of this Opinion, physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal,” and additional criminal and regulatory sanctions may apply to abortions performed after 15 weeks of pregnancy, the ruling said. The law carries a sentence of two to five years in prison upon conviction.
With what many believe to be this antediluvian ruling, Arizona, the Grand Canyon state, has forged a political gulf nearly as deep and wide as that cleft in the land. What reach and traction it may ultimately have, however, remains for another day to be seen.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business & commercial transactions; real estate & development; family law, custody, & divorce; and civil litigation. Robbins may be reached at 970/926.4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale),” “The Stone Minder’s Daughter,” “Why I Walk so Slow,” and “He Said They Came From Mars (stories form the edge of the legal universe)” are currently available at fine booksellers, and coming soon, “The Theory of Dancing Mice.”
