Arizona’s law against abortion dates back 160 years, but that does not make it bad. The state’s Supreme Court recently upheld the law, first passed in 1864 and then recodified two more times in 1901 and 1913. It was part of the Howell Code, a set of laws passed when Arizona became a territory.
But the worth of something, a law or a human being, is not determined by age.
The state’s law, first passed when it was a territory, bans all abortions except in a case threatening the life of the mother. This is what makes the law good: It generally protects human life from the moment of conception. Any criticism of the law must address what the law does, not its age, as some media outlets and politicians have done.
“It’s jarring to think that Arizonans today — thanks to a new state Supreme Court ruling — will soon be living under an abortion law from when Arizona was a frontier territory and that predates the light bulb and antibiotics,” a CNN journalist wrote.
“And so, with the Dobbs v. Jackson Women’s Health Organization decision that replaced Roe, justices turned away from the ’70s idea that women should have certain rights and returned to the 1860s idea that states should have them instead,” CNN’s Zachary Wolf wrote.
Gov. Gavin Newsom (D-CA) employed a similar criticism.
“In 1864 America was in a Civil War, slavery was still allowed, people used horse-drawn buggies and dirt roads to get around, and the railroad system was an innovative and new concept,” Newsom tweeted.
But there were some good and bad ideas in the 1860s, as acknowledged by the Washington Post’s Phillip Bump.
“It isn’t that the law is old that makes it a dubious fit for the moment,” Bump wrote. “After all, the Bill of Rights is old and it contains rules and guidelines that deserve to be maintained,” he wrote, responding to Newsom.
He fairly noted that Arizona banned slavery at the time and “ma[de] it illegal to entice Black people to leave Arizona so that they can be sold into slavery.”
But he also argued the views of the time undermined the code’s credibility.
“Instead, the point is that the Howell Code was a product of its time and its time’s morality, a point that is made more obvious when considering other elements of the law that clearly do not conform to 2024 beliefs,” he wrote.
Bump conflates the state’s abortion law with antiquated legislation that punished people who had sex with girls “under the age of ten years, either with or without her consent” or protected parents who accidentally beat their child to death while meting out a “moderate” punishment.
Taking his point that some views of Arizona’s legislators were wrong or not fully enlightened does not invalidate all of the territory’s laws.
The mores of Arizona politicians also prohibited slavery and said property an unmarried woman brought into a marriage remained hers, even if her husband died. This protected her assets from being seized to pay off her husband’s debts. Those are good mores.
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If Arizona is knocked for having some bad laws at the time, then it also gets credit for having enlightened views, including the protection of all human life.
That was a good view in 1864 and is now in 2024.
Matt Lamb is a contributor to the Washington Examiner’s Beltway Confidential blog. He is an associate editor for the College Fix and has previously worked for Students for Life of America and Turning Point USA.