1864 law repeal: A step in the right direction

The Arizona Legislature has successfully voted to repeal its controversial abortion ban from 1864. Gov. Katie Hobbs is expected to sign the bill, which will come as a relief to many, but the fight for reproductive autonomy in Arizona, and across the United States, is far from over.

When the Arizona Supreme Court ruled that, with Roe v. Wade overturned, the state’s abortion ban from 1864 was enforceable, the world took notice. Many found it particularly offensive that so many women would be expected to comply with a law that was passed decades before Arizona was a state, and before women even had the right to vote.

Containing only an exception for life-threatening medical need — and not for health-threatening emergencies, for rape, or for incest — the law also was interpreted to permit criminal prosecution of physicians and abortion patients themselves, with a penalty of up to 5 years in prison.

As an expert in abortion law and policy, and in the criminalization of pregnancy, I know how dangerous these bans are, especially when combined with criminal penalties. Not only do these laws prohibit healthcare providers from complying with their ethical obligations to protect their patients, but they also imperil the health of, and reduce the legal status of, anyone with the capacity for pregnancy.

As we await Hobbs’ signature on the repeal, many may be breathing a sigh of relief. To be sure, repealing the 1864 law is a victory for abortion rights. However, this law is not the only fire threatening to burn down the right to abortion.

Other fires are still raging. Without the 1864 ban, Arizona will move from a ban “from conception” to a ban at 15 weeks from the last menstrual period (13 weeks gestation). Though 15 weeks is certainly less restrictive than a total ban, this cannot be considered a final victory.

For some, a 15-week-ban will mean that they are forced to flee the state or break the law to access abortion. For others, a 15-week-ban will mean that they are forced to carry pregnancies to term and give birth against their will.

Including an exception only for life-threatening, not health-threatening medical emergencies, a 15-week-ban forces healthcare providers and patients to calculate how almost dead a patient has to be before appropriate healthcare interventions can be made.

The U.S. Supreme Court provided a bleak picture in recent at last week’s oral arguments on emergency abortion care when they debated how many, and which, organs and appendages a miscarriage patient would need to lose before they could, legally, get medical treatment. A 15-week-ban imperils the lives of all Arizonans with the capacity for pregnancy.

Even if Arizonans vote in favor of the Arizona Right to Abortion Initiative this November, enshrining abortion as a fundamental right in the state constitution, other fires will still be burning.

In our federalist system of government, a state law that conflicts with a federal law is generally considered unenforceable. Though the U.S. Supreme Court announced that overturning Roe would finally put federal legal battles over abortion to rest, they couldn’t have been more wrong. Overturning Roe v. Wade was only a first step in the anti-abortion movement’s playbook.

Those who wish to restrict abortion and contraceptives at the federal level have been eyeing another law from the 1800s — the Comstock Act. Named for its author, anti-vice extremist Anthony Comstock, the Comstock Act of 1873 banned shipping obscene materials through the mail.

“Obscene” was defined broadly, including pornographic images and erotica, and also family planning information, contraceptives, instruments used to perform abortions and even certain medical textbooks. The Comstock Act had the effect of making abortion and contraception inaccessible for decades. Though the law hasn’t been enforced since the 1930s, it was never overturned. The current presidential administration is not enforcing Comstock, but if elected, a Trump administration seems slated to use the law to ban abortion and birth control.

Another next step in the anti-abortion playbook is granting legal personhood to fertilized eggs, embryos and fetuses, which would have a devastating impact not only on the legality of abortion but could also decimate the legal personhood of anyone with the capacity for pregnancy, essentially turning them into a lesser legal class of person.

Any of these federal-level restrictions would supersede Arizona law. Not even the Arizona constitution would be strong enough to stop these federal-level restrictions.

I don’t mean to paint an apocalyptic picture, but merely, to illustrate the true scope of what we are up against in our fight for reproductive freedom. Our full reproductive autonomy can only be won if we dig in for a long fight and refuse to accept less than our full personhood.

The 1864 ban forced anti-abortion politicians to confront their own ideological (and political) limits, and to taste the bitter fruits of their labor. It exposed the reality that abortion bans are inherently harmful and discriminatory, and shocked the public — and the government — into action. But we can’t allow the excessive unreasonableness of the 1864 law to make other abortion restrictions palatable.

A step in the right direction is not enough when we need to run a marathon.