The story behind Arizona's 160-year-old abortion ban

Arizona's 160-year-old abortion ban, upheld Tuesday by the state's highest court, is part of a wave of anti-abortion laws spurred by some historic twists that might seem surprising.

For decades after the United States became a nation, abortion was legal until movement of the fetus was felt, usually until the second trimester. The movement, known as acceleration, was the threshold because, in an era before pregnancy tests or ultrasounds, it was the clearest sign that a woman was pregnant.

Before then, “women could try to get an abortion without having to worry that it was illegal,” said Johanna Schoen, a history professor at Rutgers University. After expediting, abortion providers could be charged with a misdemeanor.

“I don't think it's been particularly stigmatized,” Dr. Schoen said. “I think what was stigmatized maybe was the idea of ​​having sex outside of marriage, but obviously married women terminated their pregnancies too.”

Women terminated pregnancies in many different ways, such as ingesting medicinal herbs or potions that were thought to induce miscarriage, Dr. Schoen said. Commonly used herbs included pennyroyal and tansy. Another method involved inserting an object into the cervix to try to terminate a pregnancy or terminate it by causing an infection, Dr. Schoen said.

Since there were no tools for determining early pregnancy yet, many women could honestly say that they were not sure if they were pregnant and were simply taking herbs to restore their menstrual cycle.

Abortion providers described their services in understated but broadly understandable terms.

“It was open, but with code words,” said Mary Fissell, a professor of the history of medicine at Johns Hopkins University. The abortive drugs or herbs were called “female moon pills” or “French restructuring pills,” she said.

Newspaper advertisements made it clear that these abortion services were available.

“Abortion was commercialized in the mid-19th century, right up until the Civil War,” Dr. Fissell said. “You couldn't pretend the abortion wasn't happening.”

According to historians, around 1820, some states began passing laws restricting abortion and establishing certain penalties for providers.

By the 1840s, there were some high-profile trials in cases where women who had or tried to have abortions became seriously 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, who passed a law under which providers could be charged with manslaughter for abortions after speeding and serving. patients could be charged with misdemeanors for abortions before speeding up.

But surprisingly, one of the main catalysts for the abortion bans enacted across the country was the emergence of organized, professionalized medicine, historians say.

After the founding in 1847 of the American Medical Association, which would become the largest medical organization in the country, its members – at the time all male and white – sought to limit the medical activities of midwives and other non-physicians, the most of whom were women. . Pregnancy termination methods were often provided by people with those vocations, and historians say this was one reason the association wanted to ban abortion.

A campaign that became known as the Doctors' Crusade Against Abortion began in 1857 to urge states to pass anti-abortion laws. Its leader, Dr. Horatio Robinson Storer, wrote an anti-abortion document that was officially adopted by the AMA and later published as a book entitled “On Criminal Abortion in America.”

Subsequently the association published “Why not? A book for every woman”, also written by Dr. Storer, in which it was stated that abortion was immoral and criminal and it was argued that married women had a moral and social obligation to have children.

Dr. Storer supported the thesis that life begins at conception.

“It creates a kind of high-level moral bandwagon, and it does so for a variety of reasons that make it attractive,” Dr. Fissell said. In a sense, the argument coincided with the emerging medical understanding of embryology that characterized pregnancy as a continuum of development and did not consider acceleration as its defining phase.

There were also social and cultural forces and biases at play. Women were beginning to push for more independence, and the male-dominated medical establishment believed that “women should stay at home to have children,” Dr. Fissell said.

Racism and anti-immigration attitudes in the second half of the 19th century began to fuel support for eugenics. Several historians have claimed that these undercurrents were partly behind the anti-abortion campaign led by Dr. Storer.

“People like Storer were very worried that the wrong Americans were reproducing and that nice white Anglos 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 banned the posting of pornography and anything related to contraception or abortion.

By 1880, approximately 40 states had banned abortion. Arizona enacted its prohibition in 1864 as part of a legal code adopted soon after becoming a territory.

The law, ARS 13-3603, states: “A person who furnishes, provides, or administers to a pregnant woman, or causes such woman to take any medicine, drug, or substance, or uses or employs any instrument or other means whatsoever, with the The intent to thus procure an abortion for such a woman, unless it is necessary to save her life, is punishable by imprisonment in state prisons for not less than two years nor more than five years.

“It was an early project,” Dr. Schoen said, “but it was part of that whole wave of laws passed between 1860 and 1880.”

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