I’m surprised Alito didn’t cite him in his draft
Here’s a short thread on Alito’s use of 17th century belief systems to back up his opinion that historical oppression of women is the precedent we must respect:
Can we talk about how problematic Alito’s logic is? Alito reaches back to the 17th c. English Common law to provide a precedent for his decision, but the 17th c. judgments he cites only made abortion a crime if it happened after the child “quickens” or moves (about 20 weeks).
This 17th-18th century understanding would mean upholding Roe, and disallowing Dobbs. So Alito then says the common law somehow must have made abortion illegal before quickening — without a shred of evidence.
Why was quickening so important? Many scholars & theologians then thought that quickening marked the possible point that the soul entered into the body of the fetus.
@CorneliaDayton writes a bit about it in her famous article on abortion in early America, “Taking the Trade.” (Popular version here)
https://history.uconn.edu/taking-the-trade/
So by claiming that he wants to return us to our 17th c. common law roots, then actually ignoring their guidelines, Alito is imposing his own standard of what constitutes life (or perhaps a conservative Catholic standard) that is not in fact any past precedent in US history.
It was not even a past precedent in the Catholic Church in the 18th c., which also held to the quickening rule. Such logic falls apart upon the barest scrutiny. It is the definition of reactionary.
*technical clarification. Quickening is the point, then as now, when a mother can begin to feel a fetus move. The term is still common in medical literature & in doctor/patient conversations.
Link to full draft. Relevant cases quoted and cited esp. pp. 16-20. Alito tries valiantly, but he just can’t square the circle.
Originally tweeted by Holly Brewer (@earlymodjustice) on May 4, 2022.
And that’s not all. After using 17th century common law, the time of witch trials, to justify his decision, in the same breath he noted that the Constitution lacked any mention of abortion so it doesn’t apply to modern life. Imagine that.
Here’s Jill LePore in the New Yorker:
Within a matter of months, women in about half of the United States may be breaking the law if they decide to end a pregnancy. This will be, in large part, because Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787. As it happens, there is also nothing at all in that document, which sets out fundamental law, about pregnancy, uteruses, vaginas, fetuses, placentas, menstrual blood, breasts, or breast milk. There is nothing in that document about women at all.
Most consequentially, there is nothing in that document—or in the circumstances under which it was written—that suggests its authors imagined women as part of the political community embraced by the phrase “We the People.” There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.
Because these facts appear to surprise Alito, abortion is likely to become a crime in at least twenty states this spring. “The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision,” Alito wrote, in a leaked draft of the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization. The draft decision, which Politico published on Monday night, would overturn Roe v. Wade, the 1973 decision legalizing abortion.
Chief Justice John Roberts, promising an investigation, has not denied its authenticity. Five Justices have reportedly voted in accordance with the draft: Alito, Brett Kavanaugh, Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch. Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan are sure to dissent. Roberts is not likely to concur. One theory has it that whoever disclosed the draft is trying to make it more difficult if not impossible for Roberts to recruit a defector from the majority. But, of course, this remains unknown.
About as wholly speculative as the question of who leaked this decision is the history offered to support it. Alito’s opinion rests almost exclusively on a bizarre and impoverished historical analysis. “The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text,” he argues, making this observation repeatedly. Roe, he writes, was “remarkably loose in its treatment of the constitutional text” and suffers from one error above all: “it held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned.”
Women are indeed missing from the Constitution. That’s a problem to remedy, not a precedent to honor.
Alito cites a number of eighteenth-century texts; he does not cite anything written by a woman, and not because there’s nothing available. “The laws respecting woman,” Mary Wollstonecraft wrote in “A Vindication of the Rights of Woman,” in 1791, “make an absurd unit of a man and his wife, and then, by the easy transition of only considering him as responsible, she is reduced to a mere cypher.” She is but a part of him. She herself does not exist but is instead, as Wollstonecraft wrote, a “non-entity.”
If a right isn’t mentioned explicitly in the Constitution, Alito argues, following a mode of reasoning known as the history test, then it can only become a right if it can be shown to be “deeply rooted in this Nation’s history and tradition.” As I have argued, the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then. Especially important is the question of who was enfranchised at the time of the ratification of the Fourteenth Amendment, in 1868, the nation’s second founding, since many arguments defending abortion rights (and many other rights, too) turn on the equal-protection and due-process clauses of that amendment. Here, too, Alito is baffled to discover so little about abortion and women.
Referring to the advocates for Jackson Women’s Health Organization and to amicus briefs like one signed by the American Historical Association, Alito writes, “Not only are respondents and their amici unable to show that a constitutional right to abortion was established when the Fourteenth Amendment was adopted, but they have found no support for the existence of an abortion right that predates the latter part of the 20th century—no state constitutional provision, no statute, no judicial decision, no learned treatise.”
He might have consulted the records of the U.S. Senate from the debate over the Fourteenth Amendment, when Jacob Howard, a Republican senator from Michigan, got into an argument with Reverdy Johnson, a Democrat from Maryland. Howard quoted James Madison, who had written that “those who are to be bound by laws, ought to have a voice in making them.” This got Johnson terribly worried, because the Fourteenth Amendment uses the word “person.” He wanted to know: Did Howard mean to suggest that women could be construed as persons, too?
mr. johnson: Females as well as males?
mr. howard: Mr. Madison does not say anything about females.
mr. johnson: “Persons.”
mr. howard: I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children are not regarded as the equals of men.
Alito, shocked—shocked—to discover so little in the law books of the eighteen-sixties guaranteeing a right to abortion, has missed the point: hardly anything in the law books of the eighteen-sixties guaranteed women anything. Because, usually, they still weren’t persons. Nor, for that matter, were fetuses.
[…]
At the close of the opinion, Alito congratulates both himself and the Court that, with this ruling, they are enfranchising women. “Our decision . . . allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office,” he writes. “Women are not without electoral or political power.” True, women are no longer without electoral power. But they were without it for almost the entirety of the history on which Alito grounds his analysis of the Constitution and its provisions. You don’t need a leaked document to learn that.
He and his cohort are happy to selectively acknowledge progress that benefits them. But when it doesn’t they just harken back to the days of white wigs and tri-corn hats to justify their ideas. And if it is necessary, they will go all the way back to the 1600s — and mischaracterize it! — to justify their antiquated ideology.
Why are we at the mercy of such people?
Update: More on this theme
In Justice Alito’s draft opinion reversing Roe, he writes about “an unbroken tradition of prohibiting abortion on pain of criminal punishment,” up until Roe in 1973. He cites, as historical authority, Sir Matthew Hale. Let me tell you about Hale & his views toward women.
The Alito draft says Hale “described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’”
Hale became Lord Chief Justice of England in 1671. In his views of women, he was not a forward-thinking fellow — *even* by the abysmally low standards of his era.
(Here’s an illustration of Hale, from the National Portrait Gallery in London.)
https://www.npg.org.uk/collections/search/portrait/mw137897/Sir-Matthew-Hale
To Hale, English gentlewomen were “the ruin of families.” Young women were a particular source of despair. They “learn to be bold,” he complained, and “talk loud.” I researched Hale while writing, with @txtianmiller, the book “Unbelievable.” The book was an extension of a story we wrote for @propublica and @MarshallProj called “An Unbelievable Story of Rape.”
https://www.propublica.org/article/false-rape-accusations-an-unbelievable-story
Hale believed that for women, it was easy to accuse a man of rape. He believed that for men, such accusations were hard to defend, even if innocent. He advised that jurors be warned — explicitly, and at length — about the threat of the false accuser. He came up with quite the list of factors for jurors to weigh. Jurors, he wrote, should consider: Is the woman claiming rape of “good fame” — or “evil fame?” Did she cry out? Try to flee? Make immediate complaint afterward? Does she stand supported by others?
Hale’s words became a standard feature of criminal trials in the U.S. As long as 300 years after Hale’s death in 1676, many an American jury would be cautioned with what courts called the “Hale Warning”: an instruction to be especially wary of false accusations of rape.
But that wasn’t Hale’s only legacy.
In 1662, at Bury St. Edmunds, Hale presided at the trial of two women accused of witchcraft. Hale instructed the jury that witches were real, saying Scripture affirmed as much. The jury convicted Amy Denny and Rose Cullender, after which Hale sentenced both women to hang. Thirty years later, Hale’s handling of this trial, preserved in written record, served as model in Salem, Massachusetts, in the infamous witch trials of 1692.
Hale is known for his legal treatises. But just as revealing is a letter he wrote to his granddaughters, dispensing individually tailored advice.
Granddaughter Mary, he wrote, needed to “govern the greatness of her spirit,” lest she become “proud, imperious and revengeful.” Granddaughter Frances could make a good housewife, Hale wrote, provided she be “kept in some awe, especially in relation to lying and deceiving. As for granddaughter Ann, Hale perceived a “soft nature,” and therefore forbade plays, ballads or melancholic books, “for they will make too deep an impression upon her mind.”This letter was 182 pages long. When it came to advice, Sir Matthew Hale was full of it.
Young women, Hale wrote, “make it their business to paint or patch their faces, to curl their locks, and to find out the newest and costliest of fashions. If they rise in the morning before ten of the clock, the morning is spent between the comb, and the glass, and the box of patches; though they know not how to make provision for it themselves, they must have choice diet provided for them…”The letter reveals a man about as cheerful as his portrait suggests.
Wrote Hale: “The whole constitution of the people of this kingdom is corrupted into debauchery, drunkenness, gluttony, whoring, gaming, profuseness, and the most foolish, sottish prodigality imaginable.”
Originally tweeted by Ken Armstrong (@bykenarmstrong) on May 4, 2022.
He seems nice.