Arizona has an 1864 abortion prohibition – so what?
Does it matter how long theft has been prohibited? What about murder? Do laws prohibiting these acts deserve less respect because they have stood for so long? Of course not. Get the hottest, most important news stories on the internet – delivered FREE to your inbox as soon as they break! Take just 30 seconds…
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Does it matter how long theft has been prohibited? What about murder?
Do laws prohibiting these acts deserve less respect because they have stood for so long?
Of course not.
So, why did President Joe Biden – in promoting his view that killing an unborn child should be legal – insist on pointing out that an Arizona law that prohibits abortion was "first enacted" 160 years ago?
Biden was responding to an Arizona Supreme Court decision, which held that Arizona's abortion law would be enforceable now that the Supreme Court has overruled Roe v. Wade, which had claimed a "right" to abortion.
"This cruel ban was first enacted in 1864 – more than 150 years ago, before Arizona was even a state and well before women had secured the right to vote," Biden said in a written statement.
"This ruling is a result of the extreme agenda of Republican elected officials who are committed to ripping away women's freedom," he said.
Like Biden, establishment media organizations also claimed Arizona's law was enacted in 1864.
NBC News posted a story with this headline: "Arizona Supreme Court rules a near-total abortion ban from 1864 is enforceable."
The online New York Times published this headline: "Arizona Reinstates 160-Year-Old Abortion Ban."
"The state's highest court said the law, moribund for decades under Roe v. Wade, was now enforceable, but it put its decision on hold for a lower court to hear other challenges to the law," said the Times.
"Arizona Supreme Court rules abortion ban from 1864 can be enforced," said the headline on a story posted by CBS News.
But was this Arizona law reviewed by the court enacted in 1864?
While its predecessor was enacted then, as the court made clear in its opinion, the law it was reinstating had been enacted in 1977 – after Roe v. Wade.
"In 1864, the First Legislative Assembly published a code of laws governing the territory of Arizona," said the Arizona Supreme Court. It "established Arizona's first criminal code, which included constraints on abortion."
So, what happened to that 1864 law?
"In 1901," said the court, "the Twenty-First Legislative Assembly enacted a penal code reiterating the abortion law, dividing criminality between people who facilitate abortions and women who solicit assistance to procure an abortion."
In 1912, Arizona became a state. What did it do about abortion then?
"This language was adopted in whole in 1913, after Arizona statehood," the court said, referencing the 1901 law.
"In 1928," said the court, "the Arizona Legislature codified abortion criminality."
"In 1971, Planned Parenthood Center of Tucson, Inc. sued the Attorney General challenging the constitutionality of Arizona's abortion statutes under both the state and federal constitutions," said the court. In the case of Nelson v. Planned Parenthood Center of Tucson, a "trial court ruled Arizona's abortion statutes unconstitutional," but "the court of appeals reversed the trial court's ruling, upholding the constitutionality of the abortion statutes."
But, in 1973, the U.S. Supreme Court issued Roe, and the Arizona Court of Appeals held the state's abortion ban "unconstitutional because of Roe."
Did the Arizona state legislature back down in the face of these court decisions? No.
"To the contrary," the Arizona Supreme Court said in its recent decision, "four years after Roe and Nelson, the legislature recodified [the abortion ban], maintaining the operative language of the statute."
This 1977 recodification of Arizona's abortion ban, as cited by the state's Supreme Court, stated the following: "A person who provides, supplies or administers to a pregnant woman, or procures such woman to take any medicine, drugs or substance, or uses or employs any instrument or other means whatever, with intent thereby to procure the miscarriage of such woman, unless it is necessary to save her life, shall be punished by imprisonment in the state prison for not less than two years nor more than five years."
Why did Arizona lawmakers in 1977 take the same stance on abortion their predecessors had in 1864? Because their position was based on an unchanging principle – that is as old as mankind.
The Ten Commandments say: "You shall not kill."
As this column has noted before, Thomas Jefferson – who in the Declaration of Independence cited the "Laws of Nature and of Nature's God" and said all men "are endowed by their Creator" with a right to life – would later write that Cicero was one of the inspirations for this declaration.
"[I]t was intended to be an expression of the American mind," Jefferson said.
"All its authority rests on the harmonizing sentiments of the day, whether expressed in conversation, letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, etc."
What did Cicero – a Roman senator who lived in the first century B.C. – say that was relevant to Americans in 1776?
"True law," Cicero said, "is right reason conformable to nature, universal, unchangeable, eternal, whose commands urge us to duty, and whose prohibitions restrain us from evil."
"This law cannot be contradicted by any other law, and is not liable either to derogation or abrogation," he said. "Neither the senate nor the people can give us any dispensation for not obeying this universal law of justice. It needs no other expositor and interpreter than our own conscience. It is not one thing at Rome, and another at Athens; one thing today, and another tomorrow; but in all times and nations this universal law must forever reign, eternal and imperishable. It is the sovereign master and emperor of all beings.
"God himself is its author, its promulgator, its enforcer," said Cicero. "And he who does not obey it flies from himself, and does violence to the very nature of man."
A law that prohibits the killing of innocent human beings is as legitimate today as it would have been thousands of years ago – because it is rooted in the natural law that never has and never will change.
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