And on Tuesday, its original ban on abortion again became Arizona’s legal standard.
The decision by Arizona’s Supreme Court to revive that initial ban triggered an enormous backlash and elevated difficult political questions for Republicans nationally and in the state. It also spurred no small amount of scoffing about how archaic the law must be, given the year of its provenance. California Gov. Gavin Newsom (D), for example, pointed out that Arizona relied on dirt roads when the territorial legislature passed the Howell Code.
Those particular complaints, though, miss the point. It isn’t that the law is old that makes it a dubious fit for the moment. After all, the Bill of Rights is old and it contains rules and guidelines that deserve to be maintained. Instead, the point is that the Howell Code was a product of its time and its time’s morality, a point that is made more obvious when considering other elements of the law that clearly do not conform to 2024 beliefs.
The most obvious difference between now and then that is reflected in the Howell Code is that the United States was, at the time, at war with Southern secessionists desperate to maintain the institution of slavery. (Coincidentally, Tuesday also marked the anniversary of the South’s final surrender.) Slavery was not allowed in Arizona, but the Howell Code does recognize it as a legal issue. Section 55 of Chapter 10 (“Of Crimes and Punishments”) makes it illegal to entice Black people to leave Arizona so that they can be sold into slavery.
The prohibition on abortion comes a bit before that, just after the section banning duels. Section 45, focused initially on making intentional poisoning a crime, also establishes the ban on abortion:
“[E]very person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention· to procure the miscarriage of any woman then being with child, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years: Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.”
This is the origin of the law that remains on the books.
Consider, though, the other prohibitions that surround the initial Howell language. A bit before that, for example, the code establishes what constitutes a murder or a manslaughter. In Section 34, it also creates the category of “excusable homicides.” Those include situations such as when “a man is at work with an axe, and the head flies off and kills a bystander” or “a parent is moderately correcting his child, or a master his servant or scholar.” Only when that correction is “moderate,” mind you. Exceed the bounds of moderation correction, and you’re subject to more severe charges.
Section 38 offers another assessment of pregnancy.
“If any woman shall endeavor, privately, either by herself or the procurement of others, to conceal the death of any issue of her body, male or female, which, if born alive, would be a bastard, so that it may not come to light, whether it shall have been murdered or not,” it reads, “every such mother being convicted thereof shall suffer imprisonment in the county jail for a term not exceeding one year.”
In other words, if you were to become pregnant out of wedlock and have a miscarriage — and then conceal it — you could go to jail for a year. If you disagreed with this rule, of course, you had little recourse. Only “white male citizens” of the United States or Mexico who’d lived in the territory for six months were allowed to vote.
In Section 47, the Howell Code addresses rape, which is defined as “the carnal knowledge of a female, forcibly and against her will.” It also specifies penalties for having “carnal knowledge of any female child under the age of ten years, either with or without her consent.” To put a fine point on it, the “consent” at issue there is purportedly coming from a 9-year-old.
Many of the punishments identified for criminal actions result in execution. There’s even a stipulation that those who “by willful and corrupt perjury or subornation of perjury” get someone convicted and executed for a crime might themselves be subject to capital punishment.
Here, again, we encounter a specific rule centered on women. If there was “good reason” to believe that a condemned woman was pregnant, the Code states, the sheriff could ask a panel of three doctors to determine her status to the best of her ability. If she wasn’t pregnant, she was executed. If she was, she was allowed to live — until she gave birth, at which point the governor could once again move the execution forward.
There are other reminders that this is a legal framework centered around the frontier, from sanctions for refusing to join a posse or the rules governing citizen’s arrests. There’s also an interesting process established for holding accountable elected officials. The Howell Code establishes that third parties could level accusations of misconduct against sitting officials, forcing the official to appear at a hearing. Barring admission, a jury trial ensued and could leave to removal from office. Safe to say, some prominent elected officials would rather not have that be the national standard.
The Arizona Supreme Court decision Tuesday did not immediately revert the state law on abortion to the standard established in 1864, allowing two weeks for challenges. Should those challenges fail, though, women in Arizona could face criminal punishment for seeking an abortion, in keeping with the mores of a 19th-century society in which parents were allowed to accidentally beat their children to death and 9-year-olds were considered capable of giving consent to sexual encounters.
