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ON THE ORIGINS OF ARIZONA’S NEW OLD ABORTION BAN  
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Harold Meyerson
April 11, 2024
The American Prospect
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_ A brief look at the 1864 territory and legislature whose strictures
Arizonans must heed today _

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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
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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
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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.

_MORE FROM HAROLD MEYERSON_
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Then there’s the far more reputable William Howell
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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.

But what about the legislature itself
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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 is editor at large of The American Prospect._

Used with the permission. © The American Prospect, Prospect.org,
2024. All rights reserved. Click here to support the Prospect's brand
of independent impact journalism. [[link removed]] _Read
the original article at Prospect.org._
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* Arizona
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* abortion bans
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