Justice Alito hearkens back to dark times

In his draft Supreme Court ruling that would strike down Roe v. Wade, the 50-year-old decision that guarantees American women the right to abortion, Justice Samuel Alito aims to undermine Roe’s key assertion that such a right is inherent in the U.S. Constitution. Alito bolsters his argument by reaching far back into legal history — not just to the early days of the republic, but to England in the 17th and 13th centuries.

With admiration, Alito cites the opinions of Sir Matthew Hale, an eminent English judge and lawyer who lived in the time of Oliver Cromwell and King Charles II. Hale believed that termination of a pregnancy after “quickening” — the first stirrings of a fetus in the womb — was tantamount to murder.

Critics of Alito’s draft have been quick to point out that Hale held decidedly misogynistic views about women, regarding them as, essentially, the property of men. It is Hale who can be credited for two long-standing principles in rape cases that only in recent decades have been discredited; one, that juries should be suspicious of any woman’s claim of being raped and, two, that a husband cannot be charged with raping his wife. Hale also set the legal precedent for the Salem Witch Trials having, himself, sentenced two women to death for the crime of “witchcraft.”

Henry de Bracton is the other jurist Alito calls upon to establish that abortion has been considered a crime far longer than it has been seen as a woman’s right. Bracton, who lived in the good old 1200s, set rules for determining if a woman was faking a pregnancy by locking her up in a castle and giving her intrusive daily exams. He was all for punishing rapists by poking out their eyes and cutting off their testicles, but only if the female victim were a virgin at the time of the incident.

Bracton also equated abortion with homicide. The curious thing, though, is that for both Bracton and Hale, timing mattered. Abortion after the fetus showed movement was condemned, but earlier termination of pregnancy was considered, at worst, a misdemeanor. (Christians of the era did not believe the soul entered the developing body of the child until quickening.) That is not radically different from the guidelines of Roe, which allow abortion in all cases in the first trimester, limited abortions in the second and none in the third, except to save the life of the mother.

So, abortion rights advocates may look at Alito’s legal experts from distant centuries with disdain, but, strangely enough, they are actually more liberal on the subject of abortion than the 21st century Republican politicians who are working to ban all interference with fetal growth from the moment of conception, thus criminalizing not just early-term abortions, but also in vitro fertilization, stem cell research and various forms of birth control.

How long will it be before Republicans set their sights on witches?

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