Above: Justce Samuel Alito; Sir Matthew Hale.
Most Americans have probably never heard of Sir Matthew Hale, an English jurist who was born in 1609. But Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization cites him a half-dozen times throughout his draft as proof that abortion bans are an indispensable part of our country’s heritage.
You can’t make this shit up.
Bess Levin at Vanity Fair explains, Samuel Alito’s Antiabortion Insoiration: A 17TH-Century Jurist Who Supported Marital Rape And Had Women Executed (excerpt):
The [draft] opinion is an appalling, heinous attack on people who have relied on Roe for nearly half a century, and the most sickening part is that the conservative justice clearly doesn’t give a shit that obliterating the landmark ruling will ruin countless lives. In fact, one might argue, that’s all part of the plan. And if you needed further proof that Alito is pure evil and wants to take the U.S. back to a time when women’s bodies were property for men to control, know that one of the people he cited in his opinion was an English jurist who defended marital rape and had women executed for “witchcraft.”
Well, this was “Christian values” – in the 17th Century – all the way up to the Salem witch trials in colonial America in 1693, and beyond.
Alito’s draft heavily references English legal precedent, including that of famed jurist Sir Matthew Hale who, it should be noted, had at least two women executed for witchcraft and wrote a treatise supporting marital rape pic.twitter.com/YijPlbkcq3
— emily bell (@emilybell) May 3, 2022
Yes, Alito literally quoted this guy, who was born in 1609, as a defense for ending Roe v. Wade in 2022. “Two treatises by Sir Matthew Hale,” Alito enthusiastically writes, “described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’ See M. Hale, Pleas of the Crown.” As Jezebel notes, The History of the Pleas of the Crown “is a text that defended and laid the foundation for the marital rape exemption across the world” and reads: “For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract.” Again, Alito used the arguments of this man to bolster his case.
Alito, shorter: There was an English lady in 1732 who went to jail for killing her fetus and that’s the history most relevant to American women in 2022. Also, women shouldn’t have “relied” on having rights because their place in society was tenuous at best.
— Joanna Grossman (@JoannaGrossman) May 3, 2022
Taking away the rights of pregnant people is quite clearly just the first step for Alito, though. Per Stern:
[Alito] disavows the entire line of jurisprudence upon which Roe rests: the existence of “unenumerated rights” that safeguard individual autonomy from state invasion. Alito asserts that any such right must be “deeply rooted” in the nation’s history and tradition, and access to abortion has no such roots.
The obvious problem with this analysis is that the Supreme Court has identified plenty of “unenumerated rights” that lack deep roots in American history. Most recently, the court [recognized] the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their “appeals to a broader right to autonomy” as a slippery slope. The “high level of generality” in their reasoning, he wrote, could “license fundamental rights to illicit drug use, prostitution, and the like.”
And that’s another reason why the Roe preview is so disturbing. On Monday, former Justice Department official Elliot Williams tweeted: “You don’t need to read too far between the lines of Alito’s draft to see a rationale for overturning or weakening Griswold (the right to contraception) Obergefell (same-sex marriage) Loving (interracial marriage) Lawrence (consensual sex acts).” Incidentally, it was less than a month ago that GOP senator Mike Braun said that states should be allowed to ban interracial marriage (before claiming he misunderstood the question that led to him saying such a thing multiple times).
Requiring civil rights to be “deeply rooted in history” is a great way to say “if you didn’t always have civil rights, then you should never have them.”
— Steve Kenson (@SKenson) May 3, 2022
It has been 403 years since the first successful settlement of a colony in Jamestown, Virginia. Following up on Kenson’s point, despite the post-Civil war constitutional amendments, civil rights in the workplace and pubic accommodations were not protected until the Civil Rights Act of 1964, and voting rights were not protected until the Voting Rights Act of 1965 (and the Roberts Court has gutted the Voting Rights Act, so there’s already that).
This is only the last 57 years out of 403 years of America’s existence. Using Alito’s logic, civil rights are not “deeply rooted in history” and have been disputed and under constant opposition from white Christian conservatives, so therefore, civil rights can be reversed as well. Is Brown v. Board of Education really a “super precedent” to white Christian Nationalists who want to bring back the mythical “halcyon days” of the 1950s when white supremacy Jim Crow segregation reigned supreme, and women were expected to be barefoot and pregnant in the kitchen cooking dinner for their man when he came home from work?
As Lydia Carter also notes at Huffington Post:
Abortion was widely banned throughout the centuries of U.S. history when women were legally regarded as second-class citizens, kept out of medical institutions and public office and banned from owning property. They didn’t gain the right to vote until 1920, and Black women faced barriers to voting until Congress passed the Voting Rights Act in 1965 ― just eight years before the court decided Roe.
It wouldn’t be until after the Roe decision that all women in the U.S. gained the rights to apply for a credit card without a man’s permission, demand protection from being fired over a pregnancy, and sue workplace sexual harassers. Up until the 1990s, several states did not recognize marital rape as a crime. [Sir Matthew Hale’s influence, above.]
Laura Bassett in the Jezebel post cited by Bess Levin above, writes In Leaked Abortion Decision, Justice Alito Relies on Jurist Who Supported Marital Rape, Executed ‘Witches’:
In case you needed any further proof that the modern anti-abortion movement is an outgrowth of many centuries of virulent misogyny and violence against women, Justice Samuel Alito’s leaked opinion draft striking down Roe v. Wade relies heavily on a 17th century English jurist who had two women executed for “witchcraft,” wrote in defense of marital rape, and believed capital punishment should extend to kids as young as 14.
[H]ow interesting that Alito would cite Pleas of the Crown! That’s the text, published in 1736, 60 years after Hale’s death, that defended and laid the foundation for the marital rape exemption across the world.
[A]llowing marital rape sounds pretty antiquated, but it was actually legal in many U.S. states up through the 1990s and continues to be allowed, or at least treated quite differently under the law, in some states, than non-spousal rape. Thanks, Mr. Hale!
Also among Hale’s greatest hits: sentencing two women to death for witchcraft at a time when “the more enlightened” people of the 17th century had already begun to doubt the existence of witchcraft—an opinion the Salem, Massachusetts, judges relied on in their notoriously deadly witch trials. (According to The Boston Globe, 25 people were killed during those trials: “All 19 who were executed through a hanging died at Proctor’s Ledge. Five others died in jail, and one was crushed to death.”)
[A]s many have pointed out: The movement to ban abortion is not about and has never been about protecting fetuses. It started as a way to galvanize conservative voters in support of racial segregation—to motivate misogynistic people who really only care about punishing women to also turn out in support of the entire right-wing agenda. [See also, The Real Origins of the Religious Right, Politico Magazine, May 2014.]
And so, here we are, in the year 2022, about a month or so from the Supreme Court striking down the basic human rights of half the American population based in part on the opinion of some guy in the 1600s who wanted men to be able to rape their wives. Nevermind that a strong majority of the country wants Roe to stay intact and has absolutely no say in the matter. Perfect democracy, no notes.
MSNBC’s Lawrence O’Donnell has some serious concerns about Justice Alito’s law clerks, no doubt hand-picked by the Federalist Society, who did the research and writing of his draft opinion.