Apr 17, 2024 - Politics

How Arizona's 1864 abortion ban stayed on the books

Women holding pink signs that say, "IT'S NOT 1864" and "WOMEN. WILL. DIE."

Abortion rights demonstrators in Scottsdale on April 15. Photo: Frederic J. Brown / AFP via Getty Images

The near-total abortion ban set to take effect in the coming months was crafted before Arizona was a state — and generations of lawmakers have worked to keep it alive ever since.

The big picture: The pre-statehood ban was the law of the land in Arizona until the U.S. Supreme Court's 1973 Roe decision made it illegal to enforce.

  • But the Arizona Supreme Court ruled last week that the legislature's "unequivocal intent" was to keep it on the books should the federal right to abortion be overturned, as it was in 2022.

Flashback: The ban was first enacted in 1864 as part of the Howell Code — the original set of laws that governed the Arizona territory after Union soldiers gained control over the Confederacy during the Civil War.

Between the lines: While other states have since repealed abortion laws from the 1800s, the Arizona legislature has on multiple occasions passed legislation to uphold the ban.

  • In 1913, a year after Arizona gained statehood, the legislature codified much of the original Howell Code, including the abortion ban, in its state statutes.
  • In 1977, lawmakers re-codified the 1864 law as a political statement even though it could not be enforced because of the Roe decision, the Arizona Mirror reported.

The latest: In 2022, the state legislature passed a bill that made it illegal to perform abortions after 15 weeks of pregnancy, but that bill also explicitly stated that the new law did not repeal the 1864 statute.

What's next: Rep. Matt Gress (R-Phoenix), the lone House Republican to publicly support a repeal of the 1864 law last week, told NBC News' "Meet the Press NOW" he's "very confident" it will pass this week.

  • The legislature convenes Wednesday for the only time this week.
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