Arizona’s 1864 Abortion Ban: The History Behind the 160-Year-Old Law

The 160-year-old Arizona abortion ban that was upheld on Tuesday by the state’s highest court was among a wave of anti-abortion laws propelled by some historical twists and turns that might seem surprising.For decades after the United States became a nation, abortion was legal until fetal movement could be felt, usually well into the second trimester. Movement, known as quickening, was the threshold because, in a time before pregnancy tests or ultrasounds, it was the clearest sign that a woman was pregnant.Before that point, “women could try to obtain an abortion without having to fear that it was illegal,” said Johanna Schoen, a professor of history at Rutgers University. After quickening, abortion providers could be charged with a misdemeanor.“I don’t think it was particularly stigmatized,” Dr. Schoen said. “I think what was stigmatized was maybe this idea that you were having sex outside of marriage, but of course, married women also ended their pregnancies.”Women would terminate pregnancies in several different ways, such as ingesting herbs or medicinal potions that were thought to induce a miscarriage, Dr. Schoen said. The herbs commonly used included pennyroyal and tansy. Another method involved inserting an object in the cervix to try to interrupt a pregnancy or terminate it by causing an infection, Dr. Schoen said.Since tools to determine early pregnancy did not yet exist, many women could honestly say that they were not sure if they were pregnant and were simply taking herbs to restore their menstrual period.Abortion providers described their services in discreet but widely understood terms.“It was open, but sort of in code words,” said Mary Fissell, a professor of the history of medicine at Johns Hopkins University. Abortion medications or herbs were called “female lunar pills” or “French renovating pills,” she said.Newspaper advertisements made clear these abortion services were available.“Abortion is commercializing in the mid-19th century, up to the Civil War,” Dr. Fissell said. “You couldn’t pretend that abortion wasn’t happening.”In the 1820s, some states began to pass laws restricting abortion and establishing some penalties for providers, according to historians.By the 1840s, there were some high-profile trials in cases where women who had or sought abortions became very ill or died. Some cases involved a British-born midwife, Ann Trow Summers Lohman, known as Madame Restell, who provided herbal pills and other abortion services in New York, which passed a law under which providers could be charged with manslaughter for abortions after quickening and providers and patients could be charged with misdemeanors for abortions before quickening.But strikingly, a major catalyst of abortion bans being enacted across the country was the emergence of organized and professionalized medicine, historians say.After the American Medical Association, which would eventually become the largest doctors’ organization in the country, formed in 1847, its members — all male and white at that time — sought to curtail medical activities by midwives and other nondoctors, most of whom were women. Pregnancy termination methods were often provided by people in those vocations, and historians say that was one reason for the association’s desire to ban abortion.A campaign that became known as the Physicians’ Crusade Against Abortion began in 1857 to urge states to pass anti-abortion laws. Its leader, Dr. Horatio Robinson Storer, wrote a paper against abortion that was officially adopted by the A.M.A. and later published as a book titled “On Criminal Abortion in America.”Later, the association published “Why Not? A Book for Every Woman,” also written by Dr. Storer, which said that abortion was immoral and criminal and argued that married women had a moral and societal obligation to have children.Dr. Storer promoted an argument that life began at conception.“He creates a kind of moral high ground bandwagon, and he does that for a bunch of reasons that make it appealing,” Dr. Fissell said. In one sense, the argument coincided with the emerging medical understanding of embryology that characterized pregnancy as a continuum of development and did not consider quickening to be its defining stage.There were also social and cultural forces and prejudices at play. Women were beginning to press for more independence, and the male-dominated medical establishment believed “women need to be home having babies,” Dr. Fissell said.Racism and anti-immigrant attitudes in the second half of the 19th century began fueling support of eugenics. Several historians have said that these undercurrents were partially behind the anti-abortion campaign that Dr. Storer led.“People like Storer were very worried that the wrong Americans were reproducing, and that the nice white Anglo-Saxon ones were having abortions and not having enough children,” Dr. Fissell said.A moralistic streak was also gaining prominence, including with the passage of the Comstock Act in 1873, which outlawed the mailing of pornographic materials and anything related to contraception or abortion.By 1880, about 40 states had banned abortion. Arizona enacted its ban in 1864 as part of a legal code it adopted soon after it became a territory.The law, ARS 13-3603, states: “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, shall be punished by imprisonment in the state prison for not less than two years nor more than five years.”“It was an early one,” Dr. Schoen said, “but it is part of that whole wave of legislation that gets passed between the 1860s and the 1880s.”

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