Arizona Revised Statutes 13-3603 (1864)

Arizona Revised Statutes 13-3603, or ARS 13-3603, was a territorial law enacted in 1864 before Arizona was a state that banned abortion in any circumstances except when the mother’s life is at risk. The law remained in place even after Arizona was granted statehood in 1912 and reflected the nineteenth- and twentieth-century legal approach to abortion across the United States. However, the US Supreme Court Case Roe v. Wade (1973), hereafter Roe, overturned the statute by establishing a federal constitutional right to abortion, and made ARS 13-3603 unenforceable. The law has since featured in legal discourse following the federal law Dobbs v. Jackson Women’s Health Organization (2022), hereafter Dobbs, which overturned Roe and allowed state governments to re-enforce pre-existing abortion laws, including ARS 13-3603. By allowing states to reinstate pre-existing abortion restrictions, the Dobbs decision enabled the territorial law ARS 13-3603 to re-enter legal discussions after Dobbs.

1. Historical Context
2. The Law and Its Impact
3. After Roe
4. Recent Legal History

Historical Context

The US Congress created the Arizona Territory in 1863 when most of the territory belonged to Native American groups. The Arizona Territory became separate from New Mexico in 1863 and had no railroad, mail service, or public schools. Most of Arizona’s residents were Native Americans, who did not have the right to vote, and Mexican Americans, very few of whom had the right to vote. White women were a quarter of the non-Native population and were not allowed to vote, serve on juries, or have full control over properties. However, those women had some social influence and flexibility to make money. Most women who lived in the Arizona Territory were Diné, or part of the Navajo and Chiricahua Apache tribes. In 1864, the census reported that approximately 600 white Americans, mostly men, and approximately 6,000 Mexican-Americans lived in the territory. The census did not account for the 4,000 Native American people who lived in the territory.

The men who passed the 1864 abortion law represented a fraction of Arizona’s population and the laws passed did not apply to the other groups residing in the Arizona Territory. In 1864, Native Americans and other Apache groups controlled most of the Arizona Territory. They did not surrender to the US government, which was fighting Indigenous people and forcing Apache people onto reservations in Arizona and New Mexico. The white men who moved to Arizona worked as miners and soldiers, worked on cattle ranches, and grew cotton. William Claude Jones, an elected speaker of the House of Representatives of the Arizona Territorial Legislative Assembly in Tucson, Arizona, presided over the legislature that enacted the 1864 abortion law. Along with Jones, there were seventeen other House members and nine Senate members. Three of the legislators were of Mexican descent but were wealthy ranchers and did not represent most people in the Arizona Territory since the majority of Arizonans could not vote.

William Howell was part of the Arizona Territorial Legislative Assembly as the writer of the Howell Code. The Howell Code was one of the first legal codes for the Territory of Arizona, which included the criminalization of abortion. Different laws from states like California and New York influenced the Howell Code, which was 400 pages long. The text of ARS 13-3603 closely follows California’s abortion law, copying it almost word-for-word. ARS 13-3603 made no exception for rape or incest. According to Katherine Benton-Cohen in Time, at the time, white settlers raped Native and Mexican American women and it went unacknowledged. Also, marital rape did not exist as a legal concept, and the age of consent under the Howell Code was ten. The war against Indigenous people further involved rape as a punishment. ARS 13-3603 did not allow for any exceptions for those groups of women if they became pregnant.

The Law and Its Impact

ARS 13-3603 is in chapter ten, section forty-five of the Howell Code. The section states that any person who provides, supplies, or administers an abortion to a pregnant woman would be imprisoned in the state prison for no less than two years or no more than five years. It also states that anyone who persuades a pregnant woman to take any medicine or substance that could abort the pregnancy, or uses an instrument to abort the pregnancy, unless it is necessary to save the mother’s life, would receive the same punishment.

In 1901, about a decade prior to Arizona gaining statehood in 1912, the territory enacted a law that restricted abortion laws further. That law banned all forms of advertising for abortions, including through mail. Legislators modeled that 1901 law after the federal law the Comstock Act (1873), which banned obscenity. The Comstock Act prohibited the distribution of materials related to abortion, contraception, pornography, or any content deemed indecent or immoral. It specifically targeted items associated with sexual health or those designed to induce abortions. Arizona’s 1901 obscenity law classified abortions and contraception under obscene material, which aligned with the Comstock Act. By 1913, the Arizona legislature codified ARS 13-3603 into Arizona state law, along with most of the Howell Code, after Arizona officially became a state.

In 1918, Dora Juhl, a girl who was fifteen years old at the time, asked Rosa Boido, an obstetrician-gynecologist, to end her pregnancy. At the time, ARS 13-3603 was in place. Boido, the only female physician in Arizona at the time, asked Juhl for around $100—$2,000 as of 2025—to perform the abortion. Juhl, unable to pay the full $100, tried to give herself an abortion and returned to Boido in distress. Boido admitted Juhl as a patient. According to the records, Boido either performed an abortion, removed fetal tissue, or gave Juhl pain medication. The next day, Boido was arrested under ARS 13-3603 and lost her medical license. The jury found her guilty of performing an illegal operation and she spent three months in jail. By 1928, the Arizona Legislature had recodified ARS 13-3603, which restructured the existing legal language surrounding abortion and reinstated it as a criminal act under ARS §§ 13-211 to -213.

In an effort to avoid abortions, some lawmakers emphasized the value of birth control. Beginning in the 1930s, the case United States v. One Package of Japanese Pessaries (1936) challenged the Comstock Act. The US Court of Appeals for the Second Circuit in New York ruled that distributing contraceptives to protect a woman's health did not constitute obscenity and thus did not violate the Comstock Act. That decision loosened contraceptive regulations in various states and territories, which allowed physicians to provide contraceptives if they deemed it necessary for a woman's health. The ruling did not alter Arizona’s 1901 law. However, it set a legal precedent that diminished state-level restrictions on the education of contraception.

After Roe

In 1973, ARS 13-3603 went dormant because of the US Supreme Court’s decision in Roe. The decision declared abortion a constitutional right and that a person can have an abortion until the time of fetal viability. Following the ruling, Arizona courts placed an injunction on the enforcement of ARS 13-3603, which blocked the law. However, in 1977, despite the Roe decision rendering the old law unenforceable, the Arizona Legislature recodified ARS 13-3603, primarily to express the state's opposition to abortion.

From the 1980s to the early 2000s, Arizona lawmakers continued to implement laws that restricted access to abortion, which met several legal challenges. In 1983, Arizona changed the regulation of abortions in the state and prohibited the use of fetal tissue from abortions in research. Physicians or abortion providers who violated those regulations could be charged criminally and face up to eighteen months in prison. In 1995, Len Munsil founded the Center for Arizona Policy, or CAP. CAP is an anti-abortion advocacy group that advocates for further restrictions on abortions in Arizona. In 1999, lawmakers passed a law that required abortion providers to register with the state and adhere to specific guidelines when providing an abortion. Physicians who did not comply could have their medical license revoked and be fined up to $500. In 2000, Republican lawmakers in Arizona passed a law mandating that physicians performing abortions up to twelve weeks must submit ultrasound images to the Arizona Department of Health Services for review. Later in 2000, a federal appeals court overturned the 1983 ban on using fetal tissue from abortions for research, ruling it unconstitutional. In 2004, a federal court partially overturned the 1999 law and deemed parts of it unconstitutional.

Recent Legal History

The overturning of Roe in 2022 prompted a legal battle in Arizona over ARS 13-3603, a near-total abortion ban. On 24 June 2022, the US Supreme Court overturned Roe with its decision in Dobbs, eliminating the constitutional right to abortion and returning the regulatory power of abortions back to the states. That decision left Arizona with an unclear legal framework for abortion, despite the Arizona Legislature passing Senate Bill 1164, or SB 1164, in March 2022, which allowed abortions up to 15 weeks of pregnancy. In response, on 13 July 2022, then Attorney General, Mark Brnovich, filed a motion to lift the 1973 injunction that blocked the enforcement of ARS 13-3603 for nearly five decades. The case moved to the Pima County Superior Court, where Kellie Johnson, a Pima County Superior Court Judge, ruled in Brnovich’s favor on 23 September 2022 and reinstated ARS 13-3603. On 7 October 2022, Planned Parenthood Arizona successfully appealed to temporarily halt the enforcement, which allowed abortions to resume. By 30 December 2022, the Arizona Court of Appeals overturned Johnson's decision, stating that while ARS 13-3603 could apply to non-physicians, physicians should adhere to the regulations outlined in SB 1164.

In June 2023, Katie Hobbs, Governor of Arizona, signed Executive Order 2023-11 to protect reproductive freedom in Arizona. On 9 April 2024, the Arizona Supreme Court, in Planned Parenthood Arizona v. Mayes (2024), ruled that the state could enforce ARS 13-3603, with enforcement slated to begin forty-five to sixty days later. However, on 24 April 2024, the Arizona House passed House Bill 2677, or HB 2677, to repeal ARS 13-3603. Hobbs signed the repeal bill on 2 May 2024. As of February 2025, ARS 13-3603 was no longer effective.

In November 2024, Arizonans voted to pass Proposition 139, a citizen ballot initiative. Proposition 139 amends the state constitution and outlines the right to abortion services up to fetal viability, or twenty-four weeks of pregnancy. It allows exceptions for abortions after twenty-four weeks if the mother’s life is at risk or to protect the physical or mental health of the mother.

The history of Arizona’s abortion laws stretches from the enactment of ARS 13-3603 in 1864 to the constitutional protections provided by Proposition 139 in 2024. ARS 13-3603 represented a near-total abortion ban that reflected the restrictive reproductive rights policies of the Civil War era. The continuous influence of the 1864 law, despite federal protections established under Roe overshadowing it, resurfaced as a legal tool following the Supreme Court’s decision in Dobbs. ARS 13-3603 stood for almost 110 years until 1973. Then, for almost five decades, ARS 13-3603 was dormant. However, the Dobbs decision reignited its enforcement, initiating legal, social, and political debate over Arizona’s reproductive laws. In a Data for Progress survey conducted on 12 April 2024, sixty-six percent of all voters, not just those specific to Arizona, disapproved of the near-total abortion ban, with forty-eight percent of those voters strongly disapproving of the ban. The majority disapproval of abortion laws as outlined in the survey shows the social tensions between public opinion and the framework reinstated by the Dobbs decision.

The permanent repeal of ARS 13-3603 through HB 2677 and the subsequent passage of Proposition 139 in November 2024 represents the end of the territorial-era abortion ban. The amendment’s inclusion in the state constitution protects abortion rights against future legislative reversals.

Sources

1. Belluck, Pam. “The History Behind Arizona’s 160-Year-Old Abortion Ban.” The New York Times, April 10, 2024. https://www.nytimes.com/2024/04/10/health/arizona-abortion-ban-history.html (Accessed May 27, 2025).
2. Benton-Cohen, Katherine. “Arizona’s Abortion Ban Never Represented the Will of the People–Even in 1864.” Time, May 1, 2024. https://time.com/6972237/arizona-abortion-ban-history/ (Accessed May 27, 2025).
3. Blank, Lew. “Voters Across Party Lines Disapprove of Arizona’s Abortion Ban.” Data for Progress. https://www.dataforprogress.org/blog/2024/4/16/voters-across-party-lines-disapprove-of-arizonas-abortion-ban (Accessed May 27, 2025).
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6. Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022). https://scholar.google.com/scholar_case?case=15560296770592570126&q=Dobbs+&hl=en&as_sdt=803 (Accessed May 27, 2025).
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8. Macdonald-Evoy, Jerod. “The History of Abortion Regulations in Arizona.” Arizona Mirror, April 12, 2024. https://azmirror.com/2024/04/12/the-history-of-abortion-regulations-in-arizona/ (Accessed May 27, 2025).
9. Pinho, Faith E. and Scott Wilson. “William Howell Wrote Arizona’s 1864 Abortion Ban. He Modeled It on California’s.” LA Times, April 10, 2024. https://www.latimes.com/politics/story/2024-04-10/who-is-the-man-behind-arizonas-1864-abortion-ban (Accessed May 27, 2025).
10. Planned Parenthood Arizona v. Mayes, 545 A.Z. 3d 892 (2024). https://scholar.google.com/scholar_case?case=9382635598486422250&q=Planned+Parenthood+Arizona+v.+Mayes&hl=en&as_sdt=4,3 (Accessed May 27, 2025).
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12. Senate Bill 1164, S. 1164, 55th Cong. (2022). https://www.billtrack50.com/billdetail/1419371 (Accessed May 27, 2025).
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