What's in the Howell Code? What you need to know about the history of Arizona's abortion ban
The Arizona Legislature is contemplating a repeal of a near-total abortion ban it first put on the books 160 years ago.
For two weeks in a row, Republicans have blocked attempts to repeal the law by Democrats and one rebel Republican in the state House. It's unclear whether a state Senate attempt facilitated by two Republican lawmakers will find success. People who want to see the law repealed view the problem as urgent since the April 9 state Supreme Court ruling in favor of the pre-statehood ban.
Democratic lawmakers and abortion rights activists say they’re most worried that women’s lives would be put in jeopardy if abortion clinics shut down because of the law.
But the law, which mandates two to five years in prison for providing an abortion, is not yet enforceable. That’s allowed Democrats to enjoy a political and fundraising boost from the 1864 law without seeing it go into effect.
While House Republicans last week blocked a repeal effort, some GOP support for the law has waned now in the face of political fallout. Even former President Donald Trump said the court went “too far” and that the law should be changed.
Now, 1864 seems to be on everyone’s mind. Here’s a brief history of how Arizona got to this point:
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What is the Howell Code?
After the United States obtained Arizona's land in the war with Mexico and Gadsden Purchase of 1854, Arizona became an official U.S. territory by an act of Congress in 1863. A team of politicians, lawyers and judges were sent to Arizona the same year to form a government.
John Goodwin, the state’s first governor, disliked how the territory was made to adopt New Mexico’s laws. At the time, those included the right to enslave a person who owed a debt.
Goodwin ordered a new set of laws to be drafted. In the fall of 1864, the First Territorial Legislature met in what was then the state capitol, Prescott. Lawmakers adopted the state’s first book of laws, known as the Howell Code.
Who was William Howell?
President Abraham Lincoln appointed Michigan politician William T. Howell as a territorial judge in Arizona. According to a 1967 article about Howell by historian and lawyer John Goff in The American Journal of Legal History, Howell was a “rising politician” who championed causes including the “abolition of capital punishment, the establishment of free public schools and the right of a married woman to hold property in her own name."
Howell’s personal life was filled with tragedy: Already a widower twice over, Howell had to leave Arizona in June 1864 after only six months to travel back to Michigan to be with his third wife, who was seriously ill. Before he left, he gave the new Arizona lawmakers the Howell Code, which he had compiled with his friend and fellow judge Coles Bashford.
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Does Arizona’s current abortion law originate in the Howell Code?
Yes.
Mentioned after a section about dueling, the book of laws made it illegal in Arizona to administer drugs or use “instruments” in order to “procure the miscarriage” of a pregnant woman. An exception was made for physicians who believe the procedure is necessary “to save her life.”
The language has been streamlined over time — people convicted of the crime would be sentenced to state prison, not the territorial prison, for instance — but remains largely the same as in 1864.
Did the Howell Code also make 10 the age of consent in Arizona?
Yes, but this wasn’t uncommon at the time. Delaware, for example, lowered its age of consent in 1871 to 7.
The Howell Code, which can be read on the Arizona Memory Project site, contains other archaic laws that modern people would find mystifying.
Another law in the code, for example, would punish a woman with up to a year in jail for hiding the remains of a dead baby, but only if the child was a “bastard.” Howell borrowed the laws in the code from New York and California statutes.
Why did Arizona ban abortion in the Howell Code?
The state’s ban was by no means an outlier.
Abortion policy in the country changed dramatically beginning with the creation of the American Medical Association in 1847, according to a history of abortion laws in the United States by the Center for Reproductive Health Research & Policy at the University of California, San Francisco. The group of male physicians believed abortion was immoral and “medically dangerous,” and leaned on politicians to make it illegal.
“By 1900 abortion was illegal in every state except for the rare abortions approved by physicians themselves,” the article says.
Arizona courts put a stay on the law in 1973, after the Roe v. Wade decision. But the 1864 law became relevant again following the 2022 U.S. Supreme Court's decision overturning Roe.
Did Democratic lawmakers approve the law in 1977?
Yes.
House Speaker Ben Toma last week said the ban shouldn’t be called an “1864 law” because it’s been recodified by the Legislature since then, including in a 1977 law signed by then-Gov. Raul Castro, a Democrat.
Cathi Herrod of the Center for Arizona Policy noted the same point in a press release about the ban, saying “the pre-Roe law may accurately be called the 1977 abortion law.”
While it’s true the law was renumbered that year, it was done in a 122-page bill as part of the biggest overhaul of the state’s criminal code since 1910.
Newspaper articles from 1977 show the bill, which included mandatory minimum sentences for a range of crimes and other controversial ideas, was fiercely debated. But the abortion statute, one of hundreds of statutes renumbered in the bill, doesn’t seem to have been on anyone’s radar.
Democratic state Sen. Lela Alston, who at 81 is the oldest Arizona legislator, began her first year as a lawmaker in 1977. Democrats at that point briefly had control of the state Senate.
Records show she was among the Democrats who voted for the omnibus crime law, and therefore also voted to re-number the abortion ban, keeping on the books. She remembers voting for the bill, but said there was no mention of abortion at the time:
“It was just a bunch of numbers that we were transferring over,” she said
Had Democrats been aware the 1864 ban was lurking in the bill, "we would have raised our concerns and told the group working on it to take that out," she said.
Democrats have tried for years to repeal the law
Last week wasn’t the first time the Arizona Legislature tried to repeal the 1864 law. Democratic lawmakers have unsuccessfully run a repeal bill each session for the last five years.
Former Tempe Rep. Athena Salman left this year to become the executive director of Arizona Campaigns for Reproductive Freedom for All. The group is among those promoting a ballot measure to enshrine legal abortions in the state constitution, and sponsored the first repeal bill in 2019.
Her legislation, and similar bills in 2020 and 2021, also attempted to repeal a statute enacted a few years after the original 1864 ban that mandated at least a year in prison for a woman who receives or solicits an abortion.
Republicans repealed that law in 2021, but did so in an anti-abortion bill signed by then-Republican Gov. Doug Ducey that declared the personhood of fetuses and banned abortions sought when a fetus had a "genetic abnormality."
The repeal bills never got committee hearings, and never had a realistic chance of passing until Republicans began helping this year.
So far, though, that help hasn't been enough to force a repeal, but one could be on the way. After two defeats of a repeal bill sponsored by Tucson Democratic Rep. Stephanie Stahl Hamilton in the state House, a new bill was created and introduced in the state Senate on April 17 by Democrats and two Republicans.
With the Legislature now meeting only once each Wednesday during budget negotiations, the next chance to try to repeal the 1864 ban will come on April 24.
Reach the reporter at [email protected] or 480-276-3237. Follow him on X @raystern.
This article originally appeared on Arizona Republic: Arizona abortion ban: What is the Howell Code? Abortion law dates to 1864