There is much to be shocked by in Justice Samuel Alito's screed of a draft decision overturning Roe v. Wade, but his evocation of centuries-old common law shouldn't be one of them. As it turns out, this is not unusual, particularly among jurists who argue that certain ideas are so firmly entrenched in the culture that there no longer remains any question on their validity. That is not to say, however, that Alito's use of ancient misogyny to undergird his arguments isn't disgraceful. In fact, it's nothing short of grotesque. He goes all the way back to the 13th century to cite Judge Henry de Bracton's "De Legibus et Consuetudinibus Angliae," a text about English law and custom that explained that if a person has "struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated … he commits homicide" to argue that abortion has been considered murder for centuries.
As the Washington Post's Dana Milbank points out, Alito failed to mention some of Bracton's other words of wisdom about fraudulent pregnancies and proper torture techniques. Neither did Alito reference the fact that Bracton believed "women differ from men in many respects, for their position is inferior to that of men." As Milbank writes, Bracton did think women have certain rights:
"When a virgin is defiled," Bracton writes, "let her defiler be punished in the parts in which he offended. Let him thus lose his eyes which gave him sight of the maiden's beauty for which he coveted her. And let him lose as well the testicles which excited his hot lust." The truth of the victim's accusation would "be ascertained by an examination of her body, made by four law-abiding women sworn to tell the truth as to whether she is a virgin or defiled."
The truth is that Hale and the centuries of legal thinkers after him didn't believe that women had any autonomy in the first place.
Perhaps the rapidly accelerating right-wing movement to deny abortion even in cases of rape and incest across the country can adopt this process as a compromise? It wouldn't be that far out, after all. A few years back when South Dakota passed an abortion ban, state Rep. Bill Napoli was quoted saying that he might accept a rape exception under similar circumstances:
A real-life description to me would be a rape victim, brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it, and is impregnated. I mean, that girl could be so messed up, physically and psychologically, that carrying that child could very well threaten her life.
Never let it be said that conservatives have no compassion for rape victims — as long as they are virgins who have been horrifically brutalized "as bad as you can possibly make it." Napoli would fit right in 1250.
And Bracton wasn't the only ancient legal expert to whom Alito turned.
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Sir Matthew Hale, a 17th-century English jurist whose legal philosophy made women's lives miserable for centuries was also quoted in the draft: "two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a 'great crime' and a 'great misprision'" and "Hale wrote that if a physician gave a woman 'with child' a 'potion' to cause an abortion, and the woman died, it was 'murder' because the potion was given 'unlawfully to destroy her child within her."
As it turns out Alito isn't the only one who considers Hale an authority.
Men rationalizing their need to control women's bodies and their reproduction has been going on forever.
All the way up to the 1990s, Hale's views on rape, particularly marital rape, were commonly cited in English and American jurisprudence. He said, "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." In other words, a woman gives up her bodily autonomy when she marries. But the truth is that Hale and the centuries of legal thinkers after him didn't believe that women had any autonomy in the first place.
By the way, Hale also energetically prosecuted women for witchcraft. There's no word on where Alito stands on that issue.
All of this is simply to point out that men rationalizing their need to control women's bodies and their reproduction has been going on forever. And just because there has been recent progress in that regard doesn't mean that the underlying impulse has gone away, as reflected in Alito's draft decision in which he goes back almost a thousand years to illustrate it in living color. Yes, they are "precedents," but if you want to make the point that some precedents are not well conceived, as Alito claimed was the case with Roe, using such monstrous anachronistic examples is a particularly poor way to do it.
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The old Virginia Slims slogan in the 1970s was "we've come a long way baby." It's true, but it's not nearly as far as we'd like to think. According to Statista:
Back in the 1970s, the U.S. also seemed to be on the verge of granting full legal rights to women with the Equal Rights Amendment to the Constitution which had first been proposed in 1923. But anti-feminists like Phyllis Schlafly became right-wing heroes for opposing the movement at the final moment of the amendment's passage. So despite clearing the three-quarters threshold then, it has been stymied over and over again in the ensuing years with shifting rationales preventing its adoption.
Finally acknowledging the ratification of the ERA is fundamental if women are ever to fully emerge from the thousands of years of dominion.
Today there is a dispute with the national archivist about whether or not he can simply declare that it is ratified and part of the Constitution because it met the requirements back then or if the original expired deadline must hold (despite it being extended more than once). The Department of Justice says it's moot but President Biden promised he would push for Congress to pass a resolution acknowledging the passage of the Amendment — which he did. The House of Representatives passed it but it has not even been brought up in the Senate.
NOW THIS made a short film about the history of abortion that hits some of the highlights referenced above. It features activist Alyssa Milano who says, "the only thing that can truly ensure full gender equality–including control of our bodies–is the Equal Rights Amendment."
There are many fights that must be waged once Roe is overturned on several different fronts. But finally acknowledging the ratification of the ERA is fundamental if women are ever to fully emerge from the thousands of years of dominion by black robed authorities who seem always to get the last word on what they are and aren't permitted to do with their own bodies. It is long past time.
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