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.
UPDATE: Kathryn Pogin writes at Slate, “The “Original Sin” of the Religious Right”, https://slate.com/news-and-politics/2022/05/the-truth-about-the-religious-right-now-celebrating-the-end-of-roe.html
[To] put it in theological terms, the relationship between the religious right and abortion is stained by original sin.
There’s a widespread but mistaken belief that the battle over abortion rights in America is fundamentally a conflict between religious conservative values and progressive ideals of gender equality. This misconception is bolstered by a persistent myth that the religious right was born out of Roe. As the story goes, citizens of faith who shared a commitment to the value of human life and dignity could no longer stand on the political sidelines, and came together in coalition, sparking a movement.
[T]he leaked Supreme Court draft decision is the culmination of 50 years of passionate religious organizing in defense of life. A compelling narrative, if only it were true.
Historians like Randall Balmer have meticulously detailed a more complicated reality. Of course, religious opposition to abortion is real but it was also cultivated. Moreover, it was cultivated for purposes most religious Americans today would find morally abhorrent. As a movement, members of the religious right have been exploited by its architects—subjected to manipulation and propaganda that turned their most sacred values into a political tool.
When Roe was decided in 1973, sizable majorities of both Protestants and Catholics supported legalizing abortion. Indeed, the movement to legalize abortion included religious conservatives. In 1968, 26 theologians, physicians, and sociologists convened for a Protestant symposium on the control of human reproduction, organized by the Christian Medical Association and Christianity Today. The consensus they settled on read, “Whether or not the performance of an induced abortion is sinful we are not agreed, but about the necessity and permissibility for it under certain circumstances we are in accord.”
A few years later, in 1971, delegates to the Southern Baptist Convention passed a resolution “to work for legislation that will allow the possibility of abortion under such conditions as rape, incest, clear evidence of severe fetal deformity, and carefully ascertained evidence of the likelihood of damage to the emotional, mental, and physical health of the mother.” (It reaffirmed that position in 1974 and again 1976.) Just nine days after the Supreme Court issued its decision in Roe, an analysis of the outcome published in the Baptist Press hailed Roe as not merely permissible, but as a positive advancement of religious liberty:
This view is echoed still in some religious circles today—and for good reason. For many, deciding whether, when, and with whom to create a family is a decision of sacred importance, deeply tied to their faith and spiritual relationships. So too are beliefs about when a child’s life begins, and when the end of a mother’s life may be permissibly risked.
Widespread resistance to the legalization of abortion from the religious right did not emerge until years after Roe. Republican resistance, too. While Democrats largely supported legalizing abortion, support was actually higher among Republicans, 68 percent of whom thought the decision should be between a woman and her medical provider, compared with 59 percent of Democrats.
The movement’s early leaders were indeed motivated by a desire to dismantle an emerging legal landscape, but it was the progeny of Brown v. Board of Education that spurred them to collective action—not Roe. Two decades earlier, the Supreme Court ruled in Brown that segregation in public schools was unconstitutional.
Change on the ground, however, was painfully slow. Immediate desegregation would not be required by the court until 1969, and even then private schools continued to discriminate. Many had been founded with the express purpose of evading integration post-Brown. Falwell himself founded just such a school in 1967 in direct response to local public school integration. But in the 1970s, the Internal Revenue Service took steps to revoke the tax-exempt status of private segregated schools, nearly all of which were religiously affiliated.
In 1975, the IRS moved to revoke the tax-exempt status of Bob Jones University—a flagship evangelical institution—on precisely these grounds. As the ensuing legal battle unfolded, those who would become the leaders of the religious right grew increasingly anxious; from their point of view, racial integration was unacceptable, and the revocation of segregated Christian schools’ tax-exempt status was an infringement on religious liberty.
This, not Roe, was the catalyst to political action.
In the immediate wake of Roe, those who were pro-life “were all arguing that that decision was one more reason why Christians had to isolate themselves from the rest of the world.” But, as Katherine Stewart put it, “building a new movement around the burning issue of defending the tax advantages of racist schools wasn’t going to be a viable strategy on the national stage.” Defending unborn life was a more palatable rallying call for a change in administration. And so, in 1979, evangelical leaders put abortion on their agenda.
This move marked a decisive shift in Republican politics. In an analysis of congressional voting, data scientist Greg Adams found that until 1979 abortion wasn’t a particularly partisan issue—but a polarizing split emerged soon after. In the 1980 presidential election, conservatives’ traditional libertarian agenda played second fiddle to the new right’s anti-abortion focus.
Through manipulation and propaganda, abortion transformed from a complicated question of individual liberty, conscience, and public health—with a diversity of answers from conservatives of faith—into a religious litmus test with the express purpose of building a powerful voting bloc.
The strategy worked. Today, 30 percent of pro-life Americans are single-issue voters, compared with only 19 percent of pro-choice Americans.
Those who have hoped and prayed for the end of Roe, regardless of their politics’ limited efficacy in protecting life, may be tempted still to consider this moment a victory, however it came about. But consider this bit of history from America’s tradition of religious liberty: In 1785, the Virginia General Assembly considered a proposed tax, the proceeds of which would be used to support “teachers of the Christian religion.” James Madison, who later drafted the First Amendment, advocated in vigorous opposition. For Madison, separation of church and state is an inextricable element of religious liberty. Not only does it protect equality, but it protects religion itself from political degradation and manipulation:
Those who have hoped and prayed for the end of Roe, regardless of their politics’ limited efficacy in protecting life, may be tempted still to consider this moment a victory, however it came about. But consider this bit of history from America’s tradition of religious liberty: In 1785, the Virginia General Assembly considered a proposed tax, the proceeds of which would be used to support “teachers of the Christian religion.” James Madison, who later drafted the First Amendment, advocated in vigorous opposition. For Madison, separation of church and state is an inextricable element of religious liberty. Not only does it protect equality, but it protects religion itself from political degradation and manipulation:
During almost fifteen centuries has the legal establishment of Christianity been on trial. What have been its fruits? More or less, in all places, pride and indolence in the Clergy, ignorance and servility in the laity, in both, superstition, bigotry and persecution. …
What influence in fact have ecclesiastical establishments had on Civil Society? In some instances they have been seen to erect a spiritual tyranny on the ruins of the Civil authority; in many instances they have been seen upholding the thrones of political tyranny; in no instance have they been seen the guardians of the liberties of the people.
Madison’s warning of what might be wrought by the government entangling itself with religion applies with equal force to religious institutions that seek to entangle themselves in the government. Ordinary members of the religious right are no doubt sincere in their convictions to end Roe, but the movement itself was born out of temptation to power. And victory by way of such corruption carries a poison pill. Manipulation of this sort is antithetical to both religious integrity and religious freedom. It’s not a coincidence Madison also warned that requiring others to live by our values can do more to harm religion’s reach than to encourage others to uphold it. And indeed, consistent with Madison’s predictions, the binding of the religious right to the Republican Party has already driven Americans away from organized faith.
“Presumption of innocence” is an example of an unenumerated right.