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Opinion: Is Arizona's abortion ban a return to the 19th century? No, it's actually worse

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Opinion: Is Arizona's abortion ban a return to the 19th century? No, it's actually worse

Arizona’s Supreme Court opened a new front in the war on women’s reproductive rights last week when it resurrected an obscure 1864 law that bans abortion in almost all cases. Critics of the ruling say the court has thrown Arizona back into the 19th century.

That isn’t entirely fair to the 19th century.

The irony of last week’s reactionary ruling is that the author of the original law, William T. Howell, was a progressive by the standards of his time. The politics of Arizona’s current justices bear little resemblance to the 19th century antecedent upon whom their ruling relies.

Although many of Howell’s views have aged poorly, he argued against the era’s prevailing patriarchal dogma and in favor of women’s property rights. Even his abortion law was guided by concerns about maternal health, not the right-wing, religious orthodoxy that animates much of the antiabortion movement today.

If 19th century legal precedent is important, so is historical context. As today’s lawyers and politicians battle over the future of abortion rights, they should understand how and why the original Arizona law came to be. The statute emerged from the upheaval of the Civil War and its little-known front in the West.

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As a history professor and the author of a book on this subject, I never expected Howell to become a posthumous standard-bearer for the modern American right. If he’s known at all, it’s as an agent of Abraham Lincoln’s campaign to stamp out slavery in the Southwest and secure Union control of the region.

That story began in the spring of 1861, when a band of migrants from neighboring Texas seized power in southern New Mexico. Proclaiming their affinity for the slave-holding South, they broke from the Union and threw their allegiance behind the newly formed Confederacy. They named their new rebel territory “Arizona.”

Several months later, the Confederacy launched its first invasion of the war — into the Southwest. The rebel invaders routed U.S. troops in several battles, secured military control over Arizona and seized Santa Fe, New Mexico’s capital. Then they planned to march on the gold fields of California.

They never made it. In the spring of 1862, Union troops sabotaged the Confederates’ supplies and finally sent them scrambling back to Texas.

Congress then divided the region into a western half (Arizona) and an eastern half (New Mexico), splitting the erstwhile Confederate Arizona Territory. To strengthen the Union’s tenuous hold, Lincoln poured federal troops and agents into the region. One of them was Howell, newly appointed as an associate justice of Arizona’s territorial Supreme Court.

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A veteran jurist and former Michigan legislator, Howell got to work on a new code of laws for Arizona. The final document, now known as the Howell Code, ran to nearly 500 pages. One of its primary purposes was to ensure that slavery would never again take root in Arizona.

Buried within it was the now-infamous abortion ban. The provision was no outlier. In fact, it was copied from California’s legal code, one of many such laws passed by states and territories in the 1860s and ’70s.

From the colonial era into the early 19th century, abortions had been commonly administered and rarely criminalized. Benjamin Franklin even included a recipe for an abortifacient in a math textbook, of all places. Abortions before “quickening” — within roughly the first four or five months of pregnancy — were considered “the purview of women” rather than the law, according to the historian Sarah Handley-Cousins. Even the Catholic Church “implicitly accepted” abortions before quickening, the historian Leslie J. Reagan has noted.

The Howell Code, then, marked a departure from a more permissive approach to abortion. Even so, the antiabortion laws of the mid-19th century were generally born of a sincere concern for women’s health that is absent from today’s legislation. Tellingly, Arizona’s original antiabortion clause appeared within a provision on poisoning. The underlying premise was that abortions posed health risks to women, who were seen as victims and not held legally liable for the medical procedures performed on them.

Howell himself had a woman’s health on his mind at the time. Shortly after drafting the code, he rushed back to Michigan to be at the bedside of his ill wife. She survived, and Howell remained in Michigan, never seeing his code put into practice.

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The judge had previously defended women’s right to property in their own name rather than subsumed under her husband’s. He also advocated free public schools and opposed capital punishment (though executions were allowed for certain crimes under the Howell Code).

Howell is no progressive poster child by today’s standards. He was in many ways a man of his time. And his code, written hastily in his provisional courtroom — an adobe shack adjoining a horse corral — reflected some of the prevailing prejudices of the early American frontier, imposing numerous restrictions on people who weren’t white.

But Howell is nevertheless an awkward antecedent for today’s antiabortion movement. If Arizona’s 21st century Supreme Court justices wish to exhume an obscure 19th century predecessor from the recesses of history, that’s their prerogative. But they should understand that even he is misaligned with their extreme politics.

Kevin Waite is an associate professor of history at Durham University and the author of “West of Slavery: The Southern Dream of a Transcontinental Empire.”

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San Diego sues to stop border barrier construction

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San Diego sues to stop border barrier construction

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The city of San Diego sued the federal government to stop the construction of razor wire fencing on city-owned land near the U.S.-Mexico border, accusing federal agencies of trespassing and causing environmental damage.

The city filed the complaint in the U.S. District Court for Southern California on Monday. The complaint named Department of Homeland Security Secretary Kristi Noem and Secretary of War Pete Hegseth among the defendants.

The city accused the federal government of acting without legal authority when they entered city property in Marron Valley and began installing razor wire fencing.

“The City of San Diego will not allow federal agencies to disregard the law and damage City property,” said City Attorney Heather Ferbert in a news release. She said the lawsuit aims to protect sensitive habitats and ensure environmental commitments are upheld.

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San Diego is suing the federal government to stop the construction of razor wire fencing on city property in Marron Valley. (Justin Hamel/Bloomberg via Getty Images, File)

According to the lawsuit, federal personnel including U.S. Marines accessed the land without the city’s consent, and damaged environmentally sensitive areas protected under long-standing conservation agreements.

DHS Secretary Kristi Noem and Secretary of War Pete Hegseth were among the federal officials named in San Diego’s lawsuit. (Reuters/Brian Snyder; AP Photo/Alex Brandon)

San Diego argues the fencing has blocked the city’s ability to manage and assess its own property and could jeopardize compliance with environmental obligations.

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An American flag can be seen through the barbed wire surrounding the CoreCivic Otay Mesa Detention Center on October 4, 2025 in San Diego, California. (Kevin Carter/Getty Images)

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The lawsuit also accuses the federal government of trespassing and beginning construction without proper authority or environmental review, and unconstitutionally taking the land in violation of the Fifth Amendment.

Fox News Digital reached out to DHS and the Pentagon for comment.

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Commentary: Tim Walz isn’t the only governor plagued by fraud. Newsom may be targeted next

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Commentary: Tim Walz isn’t the only governor plagued by fraud. Newsom may be targeted next

Former vice presidential contender and current aw-shucks Minnesota Gov. Tim Walz announced this week that he won’t run for a third term, dogged by a scandal over child care funds that may or may not be going to fraudsters.

It’s a politically driven mess that not coincidentally focuses on a Black immigrant community, tying the real problem of scammers stealing government funds to the growing MAGA frenzy around an imaginary version of America that thrives on whiteness and Christianity.

Despite the ugliness of current racial politics in America, the fraud remains real, and not just in Minnesota. California has lost billions to cheats in the last few years, leaving our own governor, who also harbors D.C. dreams, vulnerable to the same sort of attack that has taken down Walz.

As we edge closer to the 2028 presidential election, Republicans and Democrats alike will probably come at Gavin Newsom with critiques of the state’s handling of COVID-19 funds, unemployment insurance and community college financial aid to name a few of the honeypots that have been successfully swiped by thieves during his tenure.

In fact, President Trump said as much on his social media barf-fest this week.

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“California, under Governor Gavin Newscum, is more corrupt than Minnesota, if that’s possible??? The Fraud Investigation of California has begun,” he wrote.

Right-wing commentator Benny Johnson also said he’s conducting his own “investigation.” And Republican gubernatorial candidate Steve Hilton is claiming his fraud tip line has turned up “(c)orruption, fraud and abuse on an epic scale.”

Just to bring home that this vulnerability is serious and bipartisan, Rep. Ro Khanna, the Silicon Valley congressman rumored to have his own interest in the Oval Office, is also circling the fraud feast like a vulture eyeing his next meal.

“I want to hear from residents in my district and across the state about waste, mismanagement, inefficiencies, or fraud that we must tackle,” Khanna wrote on social media.

Newsom’s spokesman Izzy Gardon questioned the validity of many fraud claims.

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“In the actual world where adults govern,” Gardon said, “Gavin Newsom has been cleaning house. Since taking office, he’s blocked over $125 BILLION in fraud, arrested criminal parasites leaching off of taxpayers, and protected taxpayers from the exact kind of scam artists Trump celebrates, excuses, and pardons.”

What exactly are we talking about here? Well, it’s a pick-your-scandal type of thing. Even before the federal government dumped billions in aid into the states during the pandemic, California’s unemployment system was plagued by inefficiencies and yes, scammers. But when the world shut down and folks needed that government cash to survive, malfeasance skyrocketed.

Every thief with a half-baked plan — including CEOs, prisoners behind bars and overseas organized crime rackets — came for California’s cash, and seemingly got it. The sad part is these weren’t criminal geniuses. More often than not, they were low-level swindlers looking at a system full of holes because it was trying to do too much too fast.

In a matter of months, billions had been siphoned away. A state audit in 2021 found that at least $10 billion had been paid out on suspicious unemployment claims — never mind small business loans or other types of aid. An investigation by CalMatters in 2023 suggested the final figure may be up to triple that amount for unemployment. In truth, no one knows exactly how much was stolen — in California, or across the country.

It hasn’t entirely stopped. California is still paying out fraudulent unemployment claims at too high a rate, totaling up to $1.5 billion over the last few years — more than $500 million in 2024 alone, according to the state auditor.

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But that’s not all. Enterprising thieves looked elsewhere when COVID-19 money largely dried up. Recently, that has been our community colleges, where millions in federal student aid has been lost to grifters who use bots to sign up for classes, receive government money to help with school, then disappear. Another CalMatters investigation using data obtained from a public records request found that up to 34% of community college applications in 2024 may have been false — though that number represents fraudulent admissions that were flagged and blocked, Gardon points out.

Still, community college fraud will probably be a bigger issue for Newsom because it’s fresher, and can be tied (albeit disingenuously) to immigrants and progressive policies.

California allows undocumented residents to enroll in community colleges, and it made those classes free — two terrific policies that have been exploited by the unscrupulous. For a while, community colleges didn’t do enough to ensure that students were real people, because they didn’t require enough proof of identity. This was in part to accommodate vulnerable students such as foster kids, homeless people and undocumented folks who lacked papers.

With no up-front costs for attempting to enroll, phonies threw thousands of identities at the system’s 116 schools, which were technologically unprepared for the assaults. These “ghost” students were often accepted and given grants and loans.

My former colleague Kaitlyn Huamani reported that in 2024, scammers stole roughly $8.4 million in federal financial aid and more than $2.7 million in state aid from our community colleges. That‘s a pittance compared with the tens of billions that was handed out in state and federal financial aid, but more than enough for a political fiasco.

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As Walz would probably explain if nuanced policy conversations were still a thing, it’s both a fair and unfair criticism to blame these robberies on a governor alone — state government should be careful of its cash and aggressive in protecting it, and the buck stops with the governor, but crises and technology have collided to create opportunities for swindlers that frankly few governmental leaders, from the feds on down, have handled with any skill or luck.

The crooks have simply been smarter and faster than the rest of us to capitalize first on the pandemic, then on evolving technology including AI that makes scamming easier and scalable to levels our institutions were unprepared to handle.

Since being so roundly fleeced during the pandemic, multiple state and federal agencies have taken steps in combating fraud — including community colleges using their own AI tools to stop fake students before they get in.

And the state is holding thieves accountable. Newsom hired a former Trump-appointed federal prosecutor, McGregor Scott, to go after scam artists on unemployment. And other county, state and federal prosecutors have also dedicated resources to clawing back some of the lost money.

With the slow pace of our courts (burdened by their own aging technology), many of those cases are still ongoing or just winding up. For example, 24 L.A. County employees were charged in recent months with allegedly stealing more than $740,000 in unemployment benefits, which really is chump change in this whole mess.

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Another California man recently pleaded guilty to allegedly cheating his way into $15.9 million in federal loans through the Paycheck Protection Program and Economic Injury Disaster Loan programs.

And in one of the most colorful schemes, four Californians with nicknames including “Red boy” and “Scooby” allegedly ran a scam that boosted nearly $250 million in federal tax refunds before three of them attempted to murder the fourth to keep him from ratting them out to the feds.

There are literally hundreds of cases across the country of pandemic fraud. And these schemes are just the tip of the cash-berg. Fraudsters are also targeting fire relief funds, food benefits — really, any pot of public money is fair game to them. And the truth is, the majority of that stolen money is gone for good.

So it’s hard to hear the numbers and not be shocked and angry, especially as the Golden State is faced with a budget shortfall that may be as much as $18 billion.

Whether you blame Newsom personally or not for all this fraud, it’s hard to be forgiving of so much public money being handed to scoundrels when our schools are in need, our healthcare in jeopardy and our bills on an upward trajectory.

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The failure is going to stick to somebody, and it doesn’t take a criminal mastermind to figure out who it’s going to be.

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Wyoming Supreme Court rules laws restricting abortion violate state constitution

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Wyoming Supreme Court rules laws restricting abortion violate state constitution

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The Wyoming Supreme Court ruled on Tuesday that a pair of laws restricting abortion access violate the state constitution, including the country’s first explicit ban on abortion pills.

The court, in a 4-1 ruling, sided with the state’s only abortion clinic and others who had sued over the abortion bans passed since the U.S. Supreme Court overturned Roe v. Wade in 2022, which returned the power to make laws on abortion back to the states.

Despite Wyoming being one of the most conservative states, the ruling handed down by justices who were all appointed by Republican governors upheld every previous lower court ruling that the abortion bans violated the state constitution.

Wellspring Health Access in Casper, the abortion access advocacy group Chelsea’s Fund and four women, including two obstetricians, argued that the laws violated a state constitutional amendment affirming that competent adults have the right to make their own health care decisions.

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The Wyoming Supreme Court ruled that a pair of laws restricting abortion access violate the state constitution. (Tom Williams/CQ-Roll Call, Inc via Getty Images)

Voters approved the constitutional amendment in 2012 in response to the federal Affordable Care Act, which is also known as Obamacare.

The justices in Wyoming found that the amendment was not written to apply to abortion but noted that it is not their job to “add words” to the state constitution.

“But lawmakers could ask Wyoming voters to consider a constitutional amendment that would more clearly address this issue,” the justices wrote.

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Wellspring Health Access President Julie Burkhart said in a statement that the ruling upholds abortion as “essential health care” that should not be met with government interference.

“Our clinic will remain open and ready to provide compassionate reproductive health care, including abortions, and our patients in Wyoming will be able to obtain this care without having to travel out of state,” Burkhart said.

Wellspring Health Access opened as the only clinic in the state to offer surgical abortions in 2023, a year after a firebombing stopped construction and delayed its opening. A woman is serving a five-year prison sentence after she admitted to breaking in and lighting gasoline that she poured over the clinic floors.

Wellspring Health Access opened as the only clinic in the state to offer surgical abortions in 2023, a year after a firebombing stopped construction. (AP)

Attorneys representing the state had argued that abortion cannot violate the Wyoming constitution because it is not a form of health care.

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Republican Gov. Mark Gordon expressed disappointment in the ruling and called on state lawmakers meeting later this winter to pass a constitutional amendment prohibiting abortion that residents could vote on this fall.

An amendment like that would require a two-thirds vote to be introduced as a nonbudget matter in the monthlong legislative session that will primarily address the state budget, although it would have significant support in the Republican-dominated legislature.

“This ruling may settle, for now, a legal question, but it does not settle the moral one, nor does it reflect where many Wyoming citizens stand, including myself. It is time for this issue to go before the people for a vote,” Gordon said in a statement.

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Gov. Mark Gordon expressed disappointment in the ruling. (Getty Images)

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One of the laws overturned by the state’s high court attempted to ban abortion, but with exceptions in cases where it is needed to protect a pregnant woman’s life or in cases of rape or incest. The other law would have made Wyoming the only state to explicitly ban abortion pills, although other states have implemented de facto bans on abortion medication by broadly restricting abortion.

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Abortion has remained legal in the state since Teton County District Judge Melissa Owens blocked the bans while the lawsuit challenging the restrictions moved forward. Owens struck down the laws as unconstitutional in 2024.

Last year, Wyoming passed additional laws requiring abortion clinics to be licensed surgical centers and women to receive ultrasounds before having medication abortions. A judge in a separate lawsuit blocked those laws from taking effect while that case moves forward.

The Associated Press contributed to this report.

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