There is an irony to Arizona’s returning to a pre-statehood ruling on abortion that applies to both sides of the argument.
As much as we might not like it, Arizona was smart, though, to get what it wanted now because they were smart enough to look into any options available no matter how on the fringe the action might appear..
The thing is that, when they found the Civil War era law, they did not look for reasons to ignore it, but use it.
Massachusetts ended slavery with the state’s Constitution in 1781. Thank you, John Adams.
When the first fugitive slave law was passed in the 1790s, the state adjusted its laws to stay ahead of it.
Abolition was in full swing in New Bedford when the second fugitive slave law was passed and, again, the state moved to stay ahead.
In 1843, Massachusetts granted full rights to anyone residing in the state, no citizenship required, and to be specific, used the measure of what all men being created equal with creator endowed rights was embodied in, the White Male.
Some may take offense now that such a measure was used, but in those days that was the ultimate measure to use and being equal to a White Male granted everyone the same rights including a woman’s right to vote and own property, get credit, to buy homes etc just like a White Male and, for all intents and purposes, once equality was reached, this measure would fade and for all other colonies and then states, the measure of quality would be, or should have become “Having all the rights as the people in Massachusetts”.
Had Susan B Anthony with relatives living in New Bedford, one being the captain of the Catalpa during the Fenian Rescue, voted in Massachusetts instead of New York, she would have been the precedent case that proved the Mass law.
But she didn’t.
Gays and Blacks have fought for the rights they actually have had since 1843.
Women waited until 1920 before finally exercising the right to vote, a right they had already had for 77 years already.
No one looked at the law and, just as now without reading or considering it seriously, dismiss it as a reaction to the fugitive slave laws when the law clearly does not have that application. Slavery and any reference to skin color are nowhere mentioned in the law as its reason for being.
The only reference is to people living in the Commonwealth.
For the last 8 years I have quoted his law in writing and in speaking. I once presented the law at a panel discussion of lawyers talking about certain rights when, after they all admitted they were not familiar with this law that is still on the books, by consensus decided that as it was before the Civil War, it was obviously about slavery and so was negated with the post war laws Constitutional amendments.
The law is simply brushed aside based on the date of passage not the contents of it.
Now, you have Arizona relying on an existing archaic law to take the place of the more open one killed by SCOTUS. The law was there. Someone found it. It was not dismissed, but applied.
Every group in this state that had fought to change the laws when there would have been no need if they had only applied existing law or have it challenged to be continued on the books or rescinded fought for what they had already had by law. For 181 years so far.
For those who in the past did not bother to read the law or simply read it through the lens of assumption that it as only about slavery, and for those who in knee jerk fashion refuse to read or consider it but simply dismiss it out of hand, here is the actual law.
AGAIN:
1843 General laws: Part 1:Title XV: Section 102. “(a) All persons within the commonwealth, regardless of sex, race, color, creed or national origin, shall have, except as is otherwise provided or permitted by law, the same rights enjoyed by white male citizens, to make and enforce contracts, to inherit, purchase, to lease, sell, hold and convey real and personal property, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.
Note there is no reference to slavery, no requirement of citizenship, race and sex are only mentioned for clarity as to whom the law applies, and, once we have the rights of White Males, we become the norm as well.
I may not agree with their reasons for doing so, but they were smart about the strategy where the people of the Commonwealth continue not to be
And as it is relevant now, why are Trans people fighting for the rights they have had since 1843, especially as there is nothing in the law that says you only become equal to a white male by vote of the people?
Love it or hate it, Arizona was smart, It relied on existing law, no matter how old, to win their case.
It did not ignore it.
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