Attempts to gain power mostly fueled Arizona’s near-total abortion ban in 1864, as male physicians sought to dominate health care over midwives and anti-abortion advocates felt threatened by immigrants, historians said.
The Civil War-era law — which the state Supreme Court this week ruled was enforceable — was enacted at a time when women did not have the right to vote and before Arizona, then a territory, became a state.
Back then, midwives predominantly performed abortions, using herbs or metal instruments, which caused resentment among male physicians, said Karissa Haugeberg, who teaches history at Tulane University in Louisiana.
“Physicians marked midwives as competitors,” Haugeberg said. So they began campaigning to be the authorities on reproductive rights and health care.
In 1847, a small group of physicians formed the American Medical Association, largely to quash competition from midwives and other nonlicensed providers while boosting their standing as a trustworthy and well-regulated guild, said Christopher Griffin, the director of empirical and policy research at the University of Arizona.
Haugeberg said, “A lot of this was this, like, behind-the-scenes battle of physicians trying to corner the market on obstetrical care and put the decision-making power of abortion in their hands.”
At the same time, rising birthrates among an influx of Catholic immigrants, coupled with dramatically falling birthrates among American-born women, sparked “replacement theory” concerns.
“There was a huge fear, a very xenophobic fear,” Haugeberg said. “Part of it was truly to control the fertility of American-born women.”
Some abortion restrictions were already in place at the time Arizona’s passed, said Jill Wieber Lens, a University of Arkansas law professor who studies reproductive rights.
Before the state’s near-total ban, abortions were illegal there only after women started to feel fetal movement, which Lens said could begin between 16 and 21 weeks’ gestation.
But the AMA and other powerful anti-abortion advocates began a crusade against abortion in the late 1850s. And within a decade, a national movement to restrict it gained momentum.
“You can start to see the beginnings of what we now call the right-to-life movement,” Griffin said.
The Arizona law in 1864 made abortion before the detection of fetal movement a felony, punishable by two to five years in prison for anyone who performed an abortion or helped a woman obtain one, except to save the woman’s life.
A wave of similar bans swept the country. By the end of the 19th century, Haugeberg said, every state and territory had criminalized abortion.
Mary Ziegler, a legal historian at the University of California, Davis School of Law, said, “These laws all passed at the behest of the AMA, which wanted more power and discretion.”
“And that’s what these laws gave them,” she said.
The AMA said its stance on abortion has “evolved substantially since its early days in the 1800s.” In the last 50 years, it said, it has been an “advocate in defending the practice of medicine,” and it said it believes the early termination of a pregnancy is a medical matter between a patient and a physician.
And while the ban gave physicians more power in the 1860s, today’s national abortion restrictions leave doctors uncertain about when they can render care without being prosecuted, Ziegler said.
The Arizona Supreme Court said Tuesday it would put its decision on hold for 14 days so a lower court can consider “additional constitutional challenges.” Assuming the 1864 policy once again becomes state law, Arizona would be the latest state to effectively ban abortion care.
“It’s really stunning to uphold a law that at its very heart is so gendered,” Haugeberg said. “It seems to ignore all of the movement we’ve made for equality.”
In the 1860s, birth control and pregnancy tests did not exist, and what would today be considered an early-term abortion was a somewhat common practice. Doctors had a limited understanding of reproductive health, and technology lagged, historical experts said.
It was not for another 60 years that researchers would begin testing for pregnancy by injecting women’s urine into young rats to identify hormone reactions.
“That was the best science we had,” Lens said. “People today can’t even imagine it.”
