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Turning the Clock Back on Abortion: Arizona Supreme Court Upholds 1864 Ban


Unborn babies deserve equal protection under the law in 2024 just as much as they did in 1864. It’s not the babies or the science that have changed; it’s our wicked generation.

Sometimes, you turn back the clock in America.

On Tuesday, the Arizona Supreme Court upheld an 1864 law that bans nearly all abortions in the state, with the only exception granted when necessary to save the life of the mother. This ruling reverses a previous decision by the Arizona Court of Appeals that had allowed abortions up to 15 weeks following the passage of a 2022 law. The 1864 law, which predates Arizona’s statehood, includes potential prison sentences for abortion providers. However, the state Supreme Court’s decision has stayed the enforcement of this law for 14 days.

In the 4-2 decision, the judges warned, “Physicians are now on notice that all abortions, except those necessary to save a woman’s life, are illegal.”

The New York Times explains,

“The decision from the Arizona Supreme Court concerned a law that was on the books long before Arizona achieved statehood. It outlaws abortion from the moment of conception, except when necessary to save the life of the mother, and it makes no exceptions for rape or incest. Doctors prosecuted under the law could face fines and prison terms of two to five years.

Planned Parenthood Arizona, the plaintiff, and other abortion-rights supporters argued that the 1864 ban, which had sat dormant for decades, had essentially been overtaken by years of subsequent Arizona laws regulating and limiting abortion — primarily, a 2022 law banning abortion after the 15th week of pregnancy.

But the territorial-era ban was never repealed. And the Arizona Supreme Court said Arizona’s Legislature had not created a right to abortion when it passed the 15-week ban.”

In the ruling, the Arizona Supreme Court provides some fascinating history of the original law. So often, the “myth of progressive modernity” presents those in the past as being morally backward, uncivilized, or socially regressive. But it turns out that on this issue, the most crucial issue of protecting innocent, unborn life, the brave pioneers who founded Arizona were far more civilized than the pro-abortion savages — like Planned Parenthood, which sued to overturn this law in 1971 — of our day and age.

The court wrote,

“In 1864, the First Legislative Assembly published a code of laws governing the territory of Arizona. See Howell Code (1864). The Howell Code established Arizona’s first criminal code, which included constraints on abortion. In 1901, 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.”

Think about that. One of the very first set of laws governing Arizona as a territory, not even a state yet, criminalized all abortions without exception, other than for the life of the mother. Furthermore, it rightly recognized that women who solicit abortions should be legally responsible for their actions.

Also, it’s notable that the Court upheld the 1864 law on the grounds that the Dobbs ruling overturned Roe: “Absent the federal constitutional abortion right, and because § 36-2322 does not independently authorize abortion, there is no provision in federal or state law prohibiting § 13-3603’s operation. Accordingly, § 13-3603 is now enforceable.”

This is just another reminder that overturning Roe v. Wade was a real, tangible, and important win for the pro-life and abortion abolitionist movements in America — and was secured by President Trump’s appointments to the U.S. Supreme Court.

Lila Rose, president of Live Action, remarked in a post on X that “The AZ state Supreme Court has ruled that current state law protects preborn children and prohibits all elective abortions. This could save 11,000 Arizona children every year. An amazing win for human rights and children’s lives!”

However, not everyone thought it was such an “amazing win.”

The decision sparked outrage from pro-abortion politicians, including the Democrat Arizona governor, Katie Hobbs. In a video statement, she said she was “reeling from the Supreme Court’s callus decision to uphold the 1864 total abortion ban. This archaic law, which was written by men 48 years before Arizona even became a state, threatens the lives of countless women and strips us of control over our bodies…I assure Arizona women that the fight for our reproductive freedoms is far from over.”

I’m sorry, Gov. Hobbs. This “archaic” law written by men is good, right, just, and biblical. Your Orwellian Newspeak has no power here. The bill doesn’t “threaten the lives of women” it will save the lives of the unborn. And it doesn’t strip anyone of “control of their bodies” because the unborn baby growing inside of his or her mother’s womb is not the “woman’s body.”

Unfortunately, along with Hobbs’ opposition, some Republicans also voiced opposition to the permanent enactment of the 1864 law. Kari Lake, Republican candidate for Senate, released a statement opposing the ruling and calling on the governor and the state legislature to find a “common sense” solution.

On the other hand, the Republican Arizona Freedom Caucus said,

“Today, the Supreme Court of Arizona made the correct ruling, upheld the intent of the legislature, and preserved the rule of law by ruling that the pre-Roe law will remain effective…Protecting the lives of Arizona’s most vulnerable children is not a political football to be kicked around for partisan gain as Democrats so eagerly do. Make no mistake, Democrats’ advocacy for ripping children apart, limb by limb, in the womb is cruel, inhumane, and a dark stain on these pages in our future history books.”

From a Christian perspective, this law is a no-brainer — it’s obviously a good law. It doesn’t matter that it’s old, that it was written by men, or that it was passed before Arizona even became a state. The only question we should ask as Christians is: “Is it just?” Or better yet, “Does it honor God?”

This 1864 law does just that. Therefore, as I said on X, “The AZ Supreme Court made the right ruling, and it should be upheld and defended.”

The Bible is crystal clear: Life does not begin at 15 weeks; it starts at conception (Psalm 139:13-16). The value of unborn life doesn’t diminish over time. Unborn babies deserve equal protection under the law today in 2024 just as much as they did in 1864. It’s not the babies or the science that have changed; it’s our wicked generation.

In a post-Roe America, we are learning some gruesome truths about American society and its abortion idolatry. The truth, sadly, seems to be that so many Americans love abortion — they love the freedom to sacrifice their children on the altar of the sexual revolution, personal convenience, and political expediency.

Clearly, Americans of 1864 didn’t feel the same way.

And on Tuesday, the Arizona Supreme Court did the right thing, setting the abortion law clock in their nation back to a day and age when life was valued and justice mattered.

It reminds me of a quote from G.K. Chesterton in What’s Wrong with the World? In discussing the social ills of modern society, he observes:

“If I am to discuss what is wrong, one of the first things that are wrong is this: the deep and silent modern assumption that past things have become impossible.

There is one metaphor of which the moderns are very fond; they are always saying, ‘You can’t put the clock back.’ The simple and obvious answer is ‘You can.’ A clock, being a piece of human construction, can be restored by the human finger to any figure or hour. In the same way, society, being a piece of human construction, can be reconstructed upon any plan that has ever existed.”

America needs a renewed moral vision for the value and defense of unborn life in a post-Roe world. What did these Western pioneers know that we don’t? For starters, that all life is worth protecting — and also that it is the very purpose of the law to criminalize murder, even the murder of the unborn.

We need to reconstruct a society that values life. And if we are looking through the blueprints of history for some help, the 1864 Arizona abortion ban looks like a pretty good foundation to build on.

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