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**APRIL 11, 2024**
On the Prospect website
Key Bridge Collapse Spotlights Democrats, Sidelines Hogan
The former governor takes a lower profile, while Democrats rush to the
rescue. BY GABRIELLE GURLEY
Privatization Warning
A VA advisory panel issues a red alert on outsourcing. BY SUZANNE
GORDON & STEVE EARLY
Justice's Slow Prosecution of Trump Is Just the Start of Their
Sluggishness
The top leadership at DOJ, including deputy attorney general Lisa
Monaco, has failed to take available steps to hold white-collar
criminals accountable. BY ANDREA BEATY & EMMA MARSANO
The Final Act on Government Surveillance
The House leadership in both parties is poised to expand, not reform,
warrantless spying on Americans. But the rank and file isn't going
along. BY LUKE GOLDSTEIN
Meyerson on TAP
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**** On the Origins of Arizona's New Old
Abortion Ban
A brief look at the 1864 territory and legislature whose strictures
Arizonans must heed today
Now that the Arizona Supreme Court has subjected those unfortunate
Americans under its jurisdiction to the abortion prohibition enacted
during the inaugural session of the territorial legislature in 1864, a
brief look at 1864 Arizona, and that legislature, is surely in order.
A number of my fellow journalists have begun to plumb the territory and
its lawmakers who have been so abruptly brought back from the dead. From
The Washington Post
,
we've learned that William Claude Jones, the Speaker of the House
during its first-ever session, was married four or five times and that
none of his brides was older than 15. A deeper dive
into his other
preferences reveals that he'd responded to the secession of Southern
states by trying to become a delegate to the Confederate Congress. After
pro-Confederate forces were driven from most of the Southwest, Jones
took refuge in Mexico, and his efforts to return to the United States
were blocked by the Union Army, which viewed him as a traitor. He was
finally permitted to return in early 1864, when he took an oath to
support the United States-just seven months before the territorial
legislature was first established and he was elected Speaker of its
18-member lower house. He left Arizona for good in early 1865, deserting
the 15-year-old to whom he'd been married for five months, and next
popped up in Hawaii, where he took yet another 15-year-old bride.
Then there's the far more reputable William Howell
,
a prominent Michigan attorney whom President Lincoln appointed to
Arizona's first territorial judgeship and who put together the
400-page legal code that that first legislature adopted as the law of
the land. Howell's actual time spent in Arizona appears to have run
from 1864 to 1865.
More importantly for our purposes, Howell's 400-page document
apparently drew on or directly copied the legal codes of other states,
particularly New York's and California's, whose ban on abortion
Howell faithfully reproduced. Such bans had become more prevalent by the
mid-19th century; before then, for you original intent enthusiasts of
our Founders, such bans were very few.
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But what about the legislature itself
, and
the electorate that created it? It wasn't a very big legislature, with
nine members of its upper house complementing the 18 in the lower. But
then, it wasn't a very big electorate, either. The first census of the
Arizona Territory wasn't taken until 1870, six years after its
government was established. It reported that Arizona then had 9,658
residents (not counting the noncitizen Native Americans). But in
1864-five years before there was a transcontinental railroad, and one
year before the end of the Civil War was followed by increased westward
migration-the population was surely smaller. Moreover, inasmuch as the
territory still had a nontrivial share of Confederate sympathizers
unlikely to vote in a U.S. election, inasmuch as women didn't yet have
the vote, and inasmuch as political party organizations hadn't had
time to take root there, I'd be surprised if the actual number of
voters was much in excess of 1,000.
So that's who elected the legislators who codified Arizona's
abruptly resurrected abortion ban.
But did those public servants (all white males) actually pause to
consider that particular part of Howell's 400 pages of proposed laws
during their 43 days in session? Did they vote on it separately, or was
it approved in a vote on a subset of multiple provisions or on the
entire package? What little I've been able to glean about the
particulars of that inaugural session is that it chiefly concerned
itself with designating a state capital, funding contractors to build
six roads, and getting federal funds so they could better deal with the
Navaho and other tribes. It also granted two divorces, I presume in
advance of establishing courts that could hear divorce proceedings. One
was to the post surgeon at one of Arizona's military forts, the other
to one of their own legislative colleagues, who claimed he'd been
lured into marriage "by fraudulent concealment of criminal facts."
Just in case you were wondering whence Arizona's new abortion ban
came.
~ HAROLD MEYERSON
Follow Harold Meyerson on Twitter
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