Because of course we want 1864 laws to govern our right to control our own bodies. It wasn’t hard to notice that this law predates the year (1919) women got the right to vote.
I can’t decide if I am stunned or furious or sad or everything.
What effect do you suppose this will have on the November elections?
I’d like to be optimistic about this but they are still selling trump gear at the swap meets.
Right now I’m just super pissed off and not very coherent. I am at the stage of my life that having an abortion, or even using birth control is unthinkable. I am still a woman and I am also an OLD woman who remembers when women stayed in the kitchen and I remember how much my mother hated it.
1864, for fuck’s sake? Arizona didn’t even become a state until 1912.
Good on The Arizona Republic for including the straight dope. Here is the PDF version,
Can’t say I disagree with the court. In the '70s a judgement was handed down solely on the basis of Roe v Wade, and since Dobbs reversed that ruling, the judgement must be vacated.
From the article,
Planned Parenthood argued in an Aug. 19 hearing before Johnson that dozens of abortion-related laws enacted in Arizona over the years since 1973 essentially create a right to abortion.
Yeah, I have trouble imagining the Arizona legislature creating a right to abortion. I think this is adequately countered in the ruling,
Significantly, when passing laws concerning abortion when Roe v. Wade was law, the Legislature repeatedly disclaimed that the statutes it enacted were creating a right to abortion. See, e.g., […] Similarily, when creating the 15-week law, the Legislature specifically stated the statute did not repeal A.R.S. §13-3603. See, 2022 Ariz. Sess. Laws ch. 105 § 2 (2d Reg. Sess.).
Also from the article,
The basic provisions of the law were first codified by the first territorial Legislature of Arizona in 1864: It mandates two to five years in prison for anyone who provides an abortion or the means for an abortion. The state adopted the law with streamlined language in 1901; it remains on the books today as ARS 13-3603.
Something not mentioned in the article or the legislature’s website, but mentioned in the decision, is that this particular law was re-enacted in 1977:
On July 22, 1971, […] The Complaint […] asked the Court to declare then ARS. §§13-211-213 unconstitutional […]
In 1977, the Legislature re-enacted A.R.S. §§13-211-213 as §§13-3603-3605. In 2021, the Legislature repealed §13-3604, but left intact §13-3603, which criminalizes abortions except to save the life of a pregnant woman.
~Max
tl;dr see bold
You know, I think the worst thing is that if Arizona Democrats weren’t so hard-line on abortion, they may have been able to repeal the total abortion ban in return for signing off on the 15 week ban. It’s what, 95% of abortions are obtained before 15 weeks? That’s better than a total ban.
You may think, the 15 week ban was passed before Dobbs overturned Roe. Before the draft opinion was leaked, even. As far as Democrats were concerned a 15 week ban proposed in January 2022 was unconstitutional, so how could they vote for it?
There are a couple theories of constitutionality which might lead a Democrat to think this way. One, the Democrat agrees with Casey on the merits - fundamental right under the 14th due process. That’s a respectable commitment to principle over effect (means over ends). Such a person would never vote for anything less than full protection of the right to abortion, even today. I also suspect such a person is probably un-electable in today’s world.
Two, the Democrat relies on the courts to decide what is or isn’t constitutional for the legislature, and refuses to pass a law they believe violates precedent even if they disagree with that precedent. Such a person would not have compromised on 15 weeks in February, but might do so today. This legislator misses important opportunities due to a technicality he or she doesn’t even approve of, and in my opinion should be voted out of office for holding dumb principles.
Three, the Democrat reasons that the 15 week ban would have no effect because it is unconstitutional under legal precedent, therefore it isn’t worth serious consideration at this time. This legislator, rather than standing on principle (even dumb principle), lacks a political spine and is doomed to reactionary politics. Such politicians choose to dismiss the total abortion ban already on the books, and that after Justice Barrett’s appointment and the Texas case the Supreme Court was credibly accused of being eager to overturn Roe. If Roe isn’t overturned then nothing actually changes. If Roe isn’t overturned but the Mississippi law is upheld, there’s no difference versus the total ban taking effect at 15 weeks anyways. If Roe is overturned, supporting this ban protects 9 out of 10 abortions.
It can be argued, credibly, that Republicans ultimately had the votes and therefore wouldn’t compromise with Democrats. I say this isn’t 100% guaranteed. First, Republicans would love to boast about convincing Democrats to support an abortion ban, both local and national Republican interests would say don’t look a gift horse in the mouth. Free ammo this election cycle, big bipartisan win on a major issue for the Governor. Perhaps more importantly if Democrats had showed willingness to sign on to the Mississippi-style ban early on in January or February, before Republicans had their ducks in a line, they could have potentially repealed the total abortion ban. Republicans only have a margin of like two in each chamber, so a handful of Democrats supporting the 15 week ban early on could conceivably bring enough leverage to repeal the total ban.
But let’s face it. Any Democrat who voted for a 15 week ban would be primaried by now. There is simply no way Democratic/Independent primary voters will stand for a Democrat who votes to ban abortion at 15 weeks, no matter if it has the effect of legalizing 9 out of 10 abortions. Even with a liberal media bias you can’t expect media to pass up the headline: “Arizona Democrats vote to ban abortion at 15 weeks”. It’s a big win for Republican interests statewide and Democrats can’t possibly hope to out-spin the issue to independents ambivalent on the abortion issue. In short though Democratic support for the 15 week ban may help more actual people seeking abortions, that’s too much nuance for voters so it would hurt the Arizona Democratic party… and that’s an unacceptable trade-off.
~Max
I am so sorry. I know just how you feel.
I’ll bet Democratic turnout will be enormously boosted in AZ in the upcoming mid-terms, at least. If you can get Katie Hobbs into the Governor’s seat, it will help.
I severely doubt Arizona Republicans would have gone along with such a deal. It’s one thing to pass a 15-week ban when there’s no other abortion ban on the books – from the pro-life perspective, that’s better than the status quo. But to actively repeal an existing statutory total ban in favor of a 15-week ban would get Republicans eaten alive in their next primary.
At the time the total ban was only on the books, and it doesn’t contain exceptions for rape or incest which is controversial even in the modern Republican party. Arizona despite control of the trifecta is not a safe state in almost any measure. The total ban did not carry force of law and the jury was out as to whether it ever would again.
Republicans couldn’t muster the votes for more restrictive abortion bans, IIRC a heartbeat law was in the works but the 15 week law won out. So I don’t hold as much doubt as you on that possibility.
~Max
Thank you so much for this post. I feel MUCH better now.
If you don’t mind, I’m heading off to check Amazon for burkas before I lose the right to shop for myself as well.
Point to one example since Roe of a Republican state legislature voting to repeal, loosen or in any way broaden existing statutes restricting abortion access in that state and I’d give your position more credence. It didn’t matter that it didn’t “carry the force of law” – Republican members would have to vote for a bill that would repeal from statute a total ban on abortion. That vote would be an albatross around their necks in the next primary.
Like this?
That section, which was adjacent to the present abortion ban (and was enacted along with it) made it a crime for a woman to solicit or submit to (to have) abortions.
~Max
No. The Democrats aren’t going to go for any sort of abortion ban at this point because it goes contrary to their position that abortion is a fundamental right and not up to the states. If they were to support even a single ban, that position is completely undermined.
There is no reason for Democrats to give up on getting abortion legalized again, having to compromise with the people who got it overturned against the will of the people. When 70% of the country is on your side, that’s not a time to compromise, either on your position, or on your morals.
If I’m understanding correctly, the change removed the liability for the criminal act from the woman seeking the abortion and laid it on the provider. It did not create any additional circumstances under which an abortion might be considered legal. Which repealing the total ban would do.
No, because they left on the books the very next law, which is the one that actually restricts access.
Plus this was after most states were betting on Roe being overturned.
As far as the statutes go, repealing of §13-3604 didn’t throw new liability on providers. §13-3603 has been on the books since 1977, and since 1910 under a different code.
Strictly speaking the 2021 change removed liability from nobody since the injunction from 1973 was only lifted this week. We can only talk about hypothetical situations where an abortion is legal today, but wouldn’t be if §13-3604 were still on the books.
Self-managed (self-administered) abortions are the obvious example. Now it’s legally grey (I am not a lawyer), but with §13-3604 it would definitely be illegal.
~Max
I won’t chase you any further down this rabbit hole. Suffice it to say, I disagree with your contention that a deal for a 15-week abortion ban was at hand in Arizona but for the hard-line position of Democratic legislators.
I want to say New Hampshire in 1997 repealed its pre-Roe abortion laws while Republicans controlled both the House and Senate, but under Democratic Governor Shaheen (now Senator).
Based on NH SB34 (1997),
Senator Shaheen’s 25-year anniversary article on the repeal,
and Wikipedia’s table for New Hampshire’s political composition circa 1997,
| Year | Governor | Executive Council | State Senate | State House |
|---|---|---|---|---|
| 1997 | Jeanne Shaheen (D) | 4R, 1D | 15R, 9D | 254R, 146D |
~Max
These days, I think this is the answer
The abortion ban in Arizona has been repealed.