On April 9, 2024, the Arizona Supreme Court issued a 4-2 decision that allowed a law banning abortion — on the books since before Arizona became a state — to be enforced.
The backlash was immediate. U.S. President Joe Biden released a statement calling the law, which bans all abortions except those necessary to save the life of the mother and with no exceptions for rape or incest, "extreme and dangerous." Kari Lake, an Arizona Republican candidate for U.S. Senate who previously called the ban a "great law" in 2022, reversed course and urged state lawmakers to repeal it. Kris Mayes, Arizona's attorney general, has said she will not enforce the ban.
One particular claim seemed to come up again and again in criticism of the decision. MSNBC anchor Joy Reid, for example, noted that when the law was passed in 1864, the age of sexual consent for girls was just 10 years old. An article in The Washington Post said the same thing. Author Stephen King posted about it on X. But is it true?
(@StephenKing / X)
In 1863, the New Mexico territory was split into two territories: New Mexico and Arizona. In 1864, the territorial governor commissioned Arizona's first set of laws, called the Howell Code. Inside the Howell Code, one particular provision banned the practice of inducing a miscarriage.
Its wording was updated in 1901 (Title IX, Chapter 3, Sections 243 and 244), but it did not change the legislative effects. The 1901 version of the law was adopted after Arizona became a state in 1912 (Title IX, Chapter 5, Sections 273 and 274). One more rephrasing of the same law happened in 1928, but other than those wording changes, the 1864 Howell Code's law was the same as the statute that was challenged in 2024.
Snopes saw two versions of the claim about Arizona's age of consent in 1864 circulating online.
In its most vehement form, the claim is that the same law in the Howell Code criminalizing abortion also set the age of consent for females at 10 years old. This is false. The law in question (Chapter X, Section 45) mentions poisoning and the intentional causing of a miscarriage (abortion) but does not mention the age of consent in any way:
SEC. 45. Every person who shall wilfully and maliciously administer or cause to be administered to or taken by any person, any poison or other noxious or destructive substance or liquid, with the intention to cause the death of such person, and being thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than ten years, and which may extend to life. And every person who shall administer or cause to be administered or taken, any medicinal substances, or shall use or cause to be used any instruments whatever, with the intention to procure the miscarriage of any woman then begin with child, and shall be thereof duly convicted, shall be punished by imprisonment in the Territorial prison for a term not less than two years nor more than five years: Provided, that no physician shall be affected by the last clause of this section, who in the discharge of his professional duties deems it necessary to produce the miscarriage of any woman in order to save her life.
It was actually a separate law within the Howell Code, Chapter X Section 47, that set the age of consent for females at 10 years old. Because these were different statutes, the Arizona Supreme Court's 2024 decision had no effect on the state's current consent laws. (By the time Arizona became a state in 1912, the age of consent was 18, for the record.)
SEC. 47. Rape is the carnal knowledge of a female, forcibly and against her will. Every person of the age of fourteen years and upwards, who shall have carnal knowledge of any female child under the age of ten years, either with or without her consent, shall be adjudged to be guilty of the crime of rape, and shall be punished by imprisonment in the Territorial prison for a term not less than five years and which may extend to life.
The other and more common version of the claim was simply that under the Howell Code, and contemporaneous with the law banning abortion, Arizona's age of consent was 10 years old. This version of the claim was true.
The same 1864 code of laws (the Howell Code) — but not the same abortion law itself — set the age of consent at 10 years old. Still, any kind of rhetorical argument against archaic laws coming back into play still stands — the original version was passed more than 150 years ago.
After nearly a month of bipartisan pressure, on May 1, 2024, three Republicans in the Arizona House of Representatives and two state Senators joined all of both chambers' Democrats to repeal the law. Gov. Katie Hobbs, a Democrat, signed the bill repealing the ban on May 2, 2024.
The fight wasn't quite over. In a statement released after the state Senate's vote, Attorney General Kris Mayes said there was still work to be done:
Today's vote by the Arizona Senate to repeal the draconian 1864 abortion ban is a win for freedom in our state. I look forward to Governor Hobbs signing the repeal into law as soon as possible. However, without an emergency clause that would allow the repeal to take effect immediately, the people of Arizona may still be subjected to the near-total abortion ban for a period of time this year. Rest assured, my office is exploring every option available to prevent this outrageous 160-year-old law from ever taking effect.