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Modern views on women absent in draft that would overturn Roe

Justice Alito instead leans on the views of a 17th century judge who convicted women of witchcraft.

WASHINGTON (CN) — To decide if the Supreme Court should overturn Roe v. Wade, Justice Samuel Alito asks for the conservative supermajority whether America has a historic tradition of providing abortion rights.

He concludes it doesn’t, citing Sir Matthew Hale. 

“Hale and Blackstone explained a way in which a pre-quickening abortion could rise to the level of a homicide,” Alito wrote in his draft opinion, which leaked last week. “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.’”

Hale was a famous and well-respected judge from the 17th century who authored major legal treatises that are still regarded by historians as important sources of English common law. Like most other men from the 17th century, however, Hale also held views on women that would now be described as misogynistic. Not only did Hale lay the foundation for the common law marital rape exemption, which gives legal immunity to men who sexually assault their wives, but he was also known for inspiring the Salem witch trials. 

“None of the judges in the Salem trials were trained lawyers themselves so what they did was they educated themselves about witchcraft trials by reading certain legal treatises and accounts of trials from England … so we know that one of the things they read was this work by Sir Matthew Hale called A Tryal of Witches,” said Mary Beth Norton, a historian at Cornell University who specializes in the Salem witch trials. 

"A Tryal of Witches" is an account by Hale of proceedings he presided over in 1662 where two young girls were convicted of witchcraft and hanged. Hale was such a respected jurist at the time that his writing established two precedents that would later be used during the Salem witch trials. 

“They accepted the fact that Sir Matthew Hale had accepted this evidence or evidence very like it and so they could accept evidence very like it,” Norton said.  

Experts say relying on the views of Hale for views on women’s rights isn’t compatible with the way Americans think about women in the 21st century. 

“The attitudes of 17th century Englishmen about women are not our attitudes about women,”  Matthew Steilen, a professor of law at the University of Buffalo, said in a phone call. “The standards they used to decide about when someone had control over their body are not the standards we would use.” 

That’s not to say that Hale shouldn’t be cited at all for his work on English common law, but Alito fails to cite anyone else who would provide a more modern view on women’s autonomy. 

“There's nothing wrong with using Hale as one source among others to tell us what the common law had to say about those topics, but there's no effort in the draft we saw, as there should be, to allow for changing views about the rights of a woman to decide whether or not to give birth as an expression of her bodily autonomy,” Steilen said.

Legal experts also take issue with Alito’s sole focus on historic views around abortion. Asking if there is a long tradition of a right fails to account for developments in modern society. Many other precedents would also fail the same test. If the court were to ask if there was a long history of interracial marriage, the answer would be no, and Loving v. Virginia would have to be overturned. The same would apply to Lawrence v. Texas, which outlawed anti-sodomy laws. 

Experts say the correct method, as the court applied in other cases, would be to do a historical inquiry as well as a conceptual inquiry to ask if the activity is fundamental to liberty in the American system. 

“It's the same two-part inquiry that the court has applied in its doctrine of incorporation cases,” Steilen said. “Part of it is a historical inquiry but the second part is more conceptual. It's the same test that Alito himself employed in McDonnell, the doctrine incorporation case dealing with the Second Amendment.” 

Not only does Alito fail to apply the correct test in his draft, but experts say he avoids arguments in support of Roe by only looking at the right to abortion and not women’s rights around privacy and autonomy which Roe is based on. 

“By focusing so heavily on the historical inquiry by framing the right so narrowly — the right of abortion rather than a broader right of privacy, or bodily autonomy, or bodily integrity — the draft escapes grappling with the intuition that I think leads many people to support Roe which is whenever they thought about abortion in 17th century England, we think that part of the meaning of liberty part of what it means to be free is to have control over your own body,” Steilen said.

A leaked draft opinion is unprecedented in Supreme Court history so it is not clear how much of Alito's draft could become part of the final ruling. The draft was circulated in February and reporting from Politico suggests that the court has not circulated another version.

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