By Barry Sheppard

The Arizona State Supreme Court has banned all abortions, except in cases where it is necessary to save a woman’s life. To do this, the Court dusted off and reinstated an old law passed in 1864 that is still on the books, even though it hasn’t been enforced for over a century.

At the time, Arizona wasn’t a state but a “territory”, fought over by the Union and the Confederacy during the Civil War. It wouldn’t become a state until 1912.

Women didn’t have the right to vote in the U.S. until 1920, won by a mass movement known as the “first wave” of the fight for women’s rights.

The “second wave” came in the radicalization of the 1960s and 70s, which won women’s right to abortion, in the 1973 U.S. Supreme Court decision known as Roe v. Wade, which was overturned by the same Court in 2022.

Having an important right taken away after a half century was a shock, especially for women who grew up with this right. The right to abortion is supported by a big majority of women and male supporters.

The 2022 decision gave the states jurisdiction over the decision about abortion rights and restrictions. The fight has occurred at the state level, with the anti-abortion forces of far right Republicans turning to state legislatures and the Courts to enact various bans and restrictions in face of mass opposition.

The Arizona Supreme Court anti-democratic decision should be seen in this light. The fight is on, as abortion rights activists in Arizona for Abortion Access, are collecting over one million signatures, many more than required, to put the issue on a referendum for the November elections, to enshrine abortion rights in the state constitution.

Such referendums affirming women’s right to abortion have been victorious in earlier cases, including in states having ultra-right Republican legislatures that are the spearhead on the legislative level of the mass anti-abortion movement. The first was just after Roe v Wade was overturned in 2022, in Republican-controlled Kansas, but that has been repeated in other states.

Another old law that bans abortions on the federal level is known as the Comstock Act, enacted in 1873. It is known for its far-reaching ban on “obscene” materials including books, films, etc. This was gradually abandoned beginning in the 1960s, but significantly, Comstock also banned abortion and contraception.

Concerning the Arizona Supreme Court decision, Democracy Now interviewed Amy Littlefield, abortion access correspondent at the Nation magazine. She put the Arizona case in context: “This dates back to an era where we had widespread regulation of not just abortion, but anything that was considered vice or immoral.

“It dates back to an era where we had the federal Comstock Act, which was used to restrict abortion drugs and devices through the mail. This law, from 1873, which hasn’t been enforced in many, many years, is now the central strategy of the anti-abortion movement. At the federal level, they’re trying to bring it back into force to create a nation-wide abortion ban, because, of course, they can’t win in the court of public opinion.”

Littlefield also referenced a pro-abortion referendum that is on the ballot in  Florida, “where justices on the conservative Supreme Court in that state seem to be flirting with the idea that personhood for fetuses and embryos is protected under the Florida Constitution. The key caveat here is that we are going to see abortion on the ballot in Arizona and Florida, and so the people are going to have their say.”

“Early Medicine’s Heavy Hand Led to Decrease in Legal Abortions” was an early headline of an article in the New York Times.

The article, now titled “The History Behind Arizona’s 160-Year-Old Abortion Ban”, described how “The 160-year-old Arizona abortion ban upheld on Tuesday by the state’s highest court was among a wave of anti-abortion laws propelled by some historical twists and turns that might seem surprising.

“For decades after the United States became a nation, abortion was legal until fetal movement could be felt, usually well into into the second trimester. Movement, known as quickening, was the threshold because, in a time before pregnancy tests or ultrasounds, it was the clearest sign that a woman was pregnant.

“Before that point, ‘women could try to obtain an abortion without having to fear that it was illegal,’ said Joanna Schoen, a professor of history at Rutgers University. After quickening, abortion providers could be charged with a misdemeanor. ‘I don’t think it was particularly stigmatized,’ Dr. Schoen said. ‘I think that what was stigmatized was maybe this idea you were having sex outside of marriage, but of course, married women also ended their pregnancies.’ ….

“In the 1820s, some states began to pass laws restricting abortions and establishing some penalties for providers”. In the 1840s there were some cases in New York where women died who had sought abortions, and a law was passed “under which providers could be charged with manslaughter for abortions after quickening and providers and patients could be charged with misdemeanors for abortions before quickening.

“But strikingly, a major catalyst of abortion bans being enacted across the country was the emergence of organized and professionalized medicine, historians say.

“After the American Medical Association, which would eventually become the largest doctor’s organization in the country was formed in 1847, its members — all male and white at that time — sought to curtail medical activities by midwives and other non-doctors, most of whom were women. Pregnancy termination methods were often provided by people in these vocations, and historians say that was one reason for the association’s desire to ban abortion.

“A campaign that became known as the Physician’s Crusade Against Abortion began in 1857 to urge states to pass anti-abortion laws. It’s leader, Dr. Horatio Robinson Storer, wrote a paper against abortion that was adopted by the AMA and later published as a book titled ‘On Criminal Abortion in America.’

“Later, the association published ‘Why Not? A Book for Every Woman,’ also written by by Dr. Storer, which said that abortion was immoral and criminal and argued that married women had a moral and societal obligation to have children.

“Dr. Storer promoted an argument that that life began at conception. ‘He creates a kind of moral high ground bandwagon, and he does that for a bunch of reasons that make it appealing,’ Dr. Mary Fissell [a professor of history at Johns Hopkins University] said ….

“There were also social and cultural forces and prejudices at play. Women were beginning to to press for more independence, and the male-dominated medical establishment believed ‘women need to be home having babies,’ Dr. Fissell said.

“Racism and anti-immigrant attitudes in the second half of the 19th century began fueling support for eugenics. Several historians have said these undercurrents were partially behind the anti-abortion campaign that Dr. Storer led.

“ ‘People like Storer were very worried that the wrong Americans were reproducing, and that nice white Anglo-Saxon ones were having abortions and not having enough children,’ Dr. Fissell said.

“A moralistic streak was also gaining prominence, including the passage of the Comstock Act in 1873, which outlawed the mailing of pornographic materials and anything relating to contraception or abortion.

“By 1880, about 40 states had banned abortion. Arizona enacted its ban in 1864 as part of a legal code it adopted soon after it became a territory….

“ ‘It was an early one,’ Dr. Schoen said, ‘but it is part of that whole wave of legislation that gets passed between the 1860s and 1880s.”

That anti-abortion forces are turning to such antiquated laws reflects that they are in a minority of Americans.

What is required to fight them is mass action, including in the streets, which won Roe v. Wade in the first place. Unfortunately, the anger against these forces is being funneled into electoral support to the Democrats in the November elections, ignoring the long history of both capitalist parties – Democrats and Republics – being behind the abortion bans that were in place until Roe v. Wade. The anti-abortion Justices on the Supreme Court that overturned Roe were all approved with Democratic support.

But there is one avenue of mass action that is open to us, also electoral, but of a different type and that is the referendums to affirm women’s right to abortion, a basic right for women to control their own bodies, without which they cannot win liberation and equality.

It will take mass campaigns to win support to put these referendums on the ballot and win the vote.