Back to petticoats: Arizona's 1864 abortion ban shows GOP longs to force women into the past

GOP's Victorian cosplay: Candidates oppose divorce, call women the "weaker sex" and aren't sure they should vote

By Amanda Marcotte

Senior Writer

Published September 26, 2022 1:02PM (EDT)

Arizona state capitol building in Phoenix, with wind blowing the state flag outside. Winged Goddess of Victory, Statue of Justice weather vane stands on top of the Capitol's copper dome. (Getty Images / DustyPixel)
Arizona state capitol building in Phoenix, with wind blowing the state flag outside. Winged Goddess of Victory, Statue of Justice weather vane stands on top of the Capitol's copper dome. (Getty Images / DustyPixel)

For some time, Arizona has been near the front of the pack of Republican-controlled states itching to ban abortion. Gov. Doug Ducey didn't wait for the June overturn of Roe v. Wade or even for the leak of the Dobbs v. Jackson Women's Health ruling in May. Merely anticipating such a decision was enough for the Republican governor to sign a 15-week abortion ban in March. But even that didn't go far enough for the state's Republican attorney general, Mark Brnovich, or Pima County Superior Court Judge Kellie Johnson, a Ducey appointee.

On Friday, Johnson upheld Brnovich's request to reinstate a draconian abortion ban that dates back to 1864. That was 48 years before Arizona became a state (and women got the right to vote there) and 56 years before women's suffrage was nationalized in the 19th Amendment. Under this law, which was enacted in the Arizona Territory shortly after the Union had reconquered it from the Confederacy (to truncate the history a little), doctors or anyone else convicted of helping a woman abort a pregnancy could face up to five years in prison. 

"Yesterday's ruling in Arizona is dangerous and will set Arizona women back more than a century,"  White House press secretary Karine Jean-Pierre said in a statement on Saturday. Which is more or less the goal, honestly. 

Heather Cox Richardson, a historian at Boston College who specializes in 19th-century American history, posted an article over the weekend putting Arizona's ban in context by noting what other statutes were passed by the territorial legislature at the same time. Along with banning abortion, the legislature set the age of sexual consent at 10 years old and also passed a law stating that "No black or mulatto, or Indian, Mongolian, or Asiatic, shall be permitted to [testify in court] against any white person" and invalidating any marriages between a white person and a Black person. 

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When feminists and abortion-rights advocates say that Republicans intend to turn the clock back to the 19th century, they really aren't exaggerating. This intention has never been far below the surface. In his concurring opinion in the Dobbs case, Justice Clarence Thomas argued that the Supreme Court should consider overturning various decisions going back to the 1960s that legalized contraception, the right of adults to have consensual sex in private and the right to same-sex marriage. He did not mention the court's decision that legalized interracial marriage, but he is known to have objected to that in the past, at least before he married a white woman. 

This sort of all-out attack wouldn't stop with rolling back rights gained in the late 20th century. Repealing Roe and other decisions like it should also be understood as a rejection of the "Reconstruction amendments" passed between 1865 and 1870. As NYU law professor Peggy Cooper Davis explains in a Washington Post article, the "equal protection" clause of the 14th Amendment was "designed to extend to all people the right to have autonomous life choices." Taking away privacy rights is about erasing the plain meaning of these amendments. 

While Republicans often like to fashion themselves as feminists in the style of the suffragists — mostly in order reject the 20th-century feminism that fought for reproductive rights — their contempt for the goals of even the first wave of feminism has been peeking out more and more often.

When Marjorie Taylor Greene says, "We are the weaker sex," it's a mistake to write that off as a fringe opinion. Increasingly, she speaks for the Republican base.

"We are the weaker sex," Rep. Marjorie Taylor Greene, R-Ga., said in a speech in April, where she argued that women's inferiority was God-given, since "We came from Adam's rib." Greene has hit this this "weaker sex" talking point more than once, and should not be written off as "fringe." Asawin Suebsaeng and Sam Brodey report for the Daily Beast, Greene's endorsement was "actively courted" in Republican primaries, given her "popularity among much of the base and what she brings to a campaign." As Alex Shephard writes in the New Republic, formerly marginal "figures like Greene are arguably more central to the party than ever before."

As CNN reported last week, John Gibbs, a Trump-endorsed Republican running for Congress in Michigan, once ran a one-man "think tank" that called for the repeal of women's right to vote. Women, he wrote, do not "posess [sic] the characteristics necessary to govern," because they cannot "think logically about broad and abstract ideas." 

Gibbs has tried to distance himself from these writings of the 2000s, claiming it was "satire" and an attempt to "draw attention to the hypocrisy of some modern-day feminists." But if you actually read what he posted at the time, those excuses seem like lies. His essays are straightforward rebuttals to feminist claims that "women have been historically oppressed," with no evident attempt at humor satire and no references to supposed feminist "hypocrisy." Honestly, his take was simple and clear: Feminists claim women are equal; Gibbs disagreed.

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It's tempting to view Gibbs as a lone weirdo who slipped through the GOP's cracks: He won his primary mostly because incumbent Rep. Peter Meijer had voted to impeach Donald Trump over the Jan. 6 attempted coup, while Gibbs has described the insurrectionists now in custody as "political prisoners." But that kind of radical sexism is nowhere near as "fringe" as it used to be in the Republican Party. 

Gibb's arguments against women voting, in fact, sound a lot like the infamous 2009 essay by tech billionaire Peter Thiel arguing that women's suffrage destroyed democracy. "Since 1920, the vast increase in welfare beneficiaries and the extension of the franchise to women — two constituencies that are notoriously tough for libertarians — have rendered the notion of 'capitalist democracy' into an oxymoron," he wrote. After the fact, Thiel tried to claim that he was somehow not arguing against voting rights for women. Once again, reading his actual words renders this unpersuasive, since much of his essay is dedicated to a fantasy about starting new nations in spaces where this supposed mistake cannot be made again. 

Thiel spent the early parts of this election cycle aggressively funding candidates to remake the GOP in his image, with considerable success. He was able to make Blake Masters the Republican Senate nominee in Arizona, where he's been running on lightly laundered ideas from the white nationalist fringe. Masters has previously described legal abortion as "demonic" — even if he's disingenuously trying to cover that up now — and backed a nationwide "personhood" law that would almost certainly be used to ban not just abortion, but most forms of birth control. 

Thiel also financed the GOP primary campaign of "Hillbilly Elegy" author J.D. Vance in Ohio. Vance has publicly argued against divorce, even in cases of domestic violence. When confronted by Vice News about this view, Vance falsely claimed that "domestic violence has skyrocketed in recent years," implying that the "sexual revolution" is to blame." In reality, while there was a relatively minor uptick during the pandemic, domestic violence rates have plummeted over the past few decades, as both law and custom have made it substantially easier for women to leave abusive men. 

The Arizona decision is right in line with other Republican abortion-ban proposals and laws that take a dim view of obstetric care — which has improved greatly since the era when doctors who delivered babies refused to even wash their hands. In states where abortion has been banned, doctors are being forced to wait until miscarrying patients go septic before they're allowed to treat them. Patients are losing ovaries or enduring hysterectomies because of abortion bans that also restrict many forms of basic gynecological care. Sen. Lindsey Graham, R-S.C., has proposed a 15-week national abortion ban that supposedly has "exceptions" for rape and incest. In reality, doctors would be required to forgo surgical abortion with rape victims, instead inducing labor and then going through the sadistic farce of attempting to "revive" a fetus that has no chance of surviving outside the womb. Taken together, all this adds up to a level of misogyny and sadism reminiscent of 19th-century doctors who argued it was "unbiblical" to offer pain relief to women during labor. 

The past few years have seen a real surge in right-wing romanticization of the 18th and 19th centuries. Justice Samuel Alito's Dobbs opinion not only holds out 19th-century attitudes about women's health care as the gold standard, but literally cites a medieval witch-burner as the moral authority on the issue. (Alito belonged to an alumni group from Princeton that objected to admitting female students and argued that women should be required to notify their husbands to get an abortion, so perhaps this is no surprise.) Still, the revival of a law literally passed during the Civil War gives the game away: Republicans really and truly want to return women to the 19th century. 

By Amanda Marcotte

Amanda Marcotte is a senior politics writer at Salon and the author of "Troll Nation: How The Right Became Trump-Worshipping Monsters Set On Rat-F*cking Liberals, America, and Truth Itself." Follow her on Twitter @AmandaMarcotte and sign up for her biweekly politics newsletter, Standing Room Only.

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