Women, Witches and Abortion: A Misguided Attack on Judge Alito
“On deer, Alito cites a judge who treated women as witches and property. So reads the title of a recent editorial in the Washington Post by Jill Elaine Hasday, professor of law at the University of Minnesota.
His efforts to discredit the leaked draft opinion in the Supreme Court case Dobbs The abortion case is based on the writings and career of 17th century jurist Sir Matthew Hale. Hasday says Judge Alito relies on Hale because “he is desperate to establish that the early American legal system was opposed to abortion.” According to her, it is necessary to quote on this point this particularly odious misogynist because it is “the best that Alito can do”.
This accusation is wrong in so many ways that it’s hard to know where to start. But it is worth careful consideration and clear rebuttal so that we can turn our attention to the real issue raised by the draft opinion, which is the legal history and status of abortion.
A supposed obsession with Hale
First, Hasday’s attack grossly exaggerates Hale’s importance, because Alito’s opinion does not cite him as the sole source of a legal fact. In the British common law system, which was not based on a written constitution but on previous judicial precedents, Hale was one of many jurists whose summaries of those precedents were used by fellow judges. Justice Alito cites a consensus of leading writers in this area – noting at one point, for example, that the same legal principle is found in “Bracton, Coke, Hale, Blackstone and a Wealth of Authority”.
In fact, there’s a very good reason why Alito has to quote Hale: Judge Harry Blackmun quoted him in his majority opinion in Roe vs. Wadeto argue that British law and early American laws generally permitted abortion.
That great defender of women’s reproductive rights, Harry Blackmun, had to resort to quoting a witch hunter and rape apologist for his arguments? Was he desperate to show that American legal history is pro-abortion? Either way, Alito had to quote Hale to respond to Blackmun’s historical claim and show why it is wrong.
Second, by claiming that it is Judge Alito whose interpretation is wrong, Hasday is simply misrepresenting him. His draft opinion notes that “Hale described the abortion of a quick child who died in the womb as a ‘great crime’.” pregnant. Well, no, Alito says exactly that. And he elsewhere says bluntly that under the common law, “abortion was a crime at least after ‘acceleration’ – that is, the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy”.
Judge Alito says a lot more than Hasday ignores. He cites Hale and Blackstone and historic treatises by John Keown and Joseph Dellapenna, as well as specific court cases, to show that abortion was considered illegal even when “acceleration” may not have taken place. And Hale, Blackstone and many other authorities have said that performing an abortion before “accelerating” can be prosecuted as homicide if the woman dies. This was an early version of the legal concept of “criminal murder”: if someone already commits a crime, a death resulting from this illegal situation can be charged to the offender as murder. The paradigmatic example is that a shooting death in a bank robbery can result in a murder prosecution for the robber, even if that person did not shoot. Incidentally, it was also an interesting way to encourage the prosecution of abortionists who put women at risk.
On the other hand, the accidental death of a patient resulting from a lawful medical act is not a homicide. Early abortion was therefore not considered a legal medical practice, even though it was a lesser offense than an “accelerated” abortion.
Third, Hasday asserts that Judge Alito’s historical account is refuted by an amicus brief filed in Dobbs by a group of historians. But footnote twenty-four of Alito’s opinion cites this brief, as well as a legal brief that contradicts it. The first memoir asserts that “fast” in reference to the unborn child meant the mother’s subjective perception of the child’s movements; the second claims it often simply meant “alive” and was believed to occur early in pregnancy.
Judge Alito goes on to say that we need not choose between these accounts because, in the 19th century, they became irrelevant. Due to medical and scientific advancements, in 1859 the American Medical Association began successfully urging US legislators to update their abortion laws by treating abortions at every stage as a crime. By the time the state legislatures ratified the Fourteenth Amendment in 1868, twenty-eight of the thirty-seven states had taken this step, and the others soon followed. So whatever else those legislatures meant by the Fourteenth Amendment’s references to “due process” (quoted by deer) or “freedom” (cited by Casey), these words could not mean a legal license for abortion.
Hasday wants to suggest that the move toward tougher anti-abortion laws stems from a demeaning view of women. But during this same part of the 19th century, American law was poised to reject the British common law tendency to wink at a husband’s physical abuse of his wife. And the AMA in 1871 explained why the “acceleration” distinction was obsolete and should be removed from American law, citing approvingly the widely respected legal compendium Archbold’s criminal practice and pleadings:
It was generally assumed that the fetus came alive during the acceleration period; but this idea is exploded. Physiology regards the fetus as a living being immediately after conception as at any other time before childbirth and its future progress, but as the development and growth of the constituent principles which it then received. He views acceleration as a mere accidental event and views life as entirely compatible with the deepest fetal rest and consequent inaction. Long before the acceleration occurs, motion, heartbeat, and other signs of vitality have been distinctly perceived, and according to approved authority the fetus enjoys life long before the sensation of acceleration not be felt by the mother. Indeed, no other doctrine seems in conformity with reason or physiology, except that which admits that the embryo possesses vitality from the moment of conception.
The discoveries of the twentieth century in embryology have only confirmed and developed this assertion.
Although I have no interest in defending Sir Matthew Hale’s very erroneous views on women, marriage or witches, it is far from clear that he originated these views or that he was unusual to have them. His treatises were not intended as creative works of legal philosophy, but as compendiums of principles drawn from the range of past British judicial decisions.
Hasday criticizes Alito’s opinion for describing Hale as an “eminent” authority in this regard. But Justice Alito was only citing a six-to-three opinion in the U.S. Supreme Court case Kahler vs. Kansas (2020), on the need to consult with “eminent common law authorities (Blackstone, Coke, Hale, etc.)” on criminal law issues such as the defense of insanity. This majority opinion was written by Judge Elena Kagan, who is not widely seen as misogynistic.
Apparently, as a judge, Matthew Hale convicted two women of practicing witchcraft. Especially in the period from 1560 to 1630, before Hale was called to the Bar, witchcraft trials had already led to the execution of thousands of people throughout Europe; in Salem, Massachusetts, they led to the execution of 20 people (14 women and 6 men) in 1692 and 1693. In this respect, tragically, Hale was a man of his time. But the accusation that he generally viewed women as witches seems overblown.
The troubled history of marital rape
Hasday further asserts that Hale had a unique influence in promoting the legitimacy of rape in marriage, not by inventing the idea, but by formulating the argument that the wife is the “property” of her husband. She quotes Hale saying, “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual consent and matrimonial contract the wife has thus delivered herself to her husband, whom ‘she can’t retract.
Hasday offers no evidence that Hale was even the originator of this rationale, as opposed to a columnist of British legal doctrine. One might even wonder if the argument here is that a wife is simply the “property” of her husband, since it seems to be based instead on the law of contract: in the marriage contract, both parties have consented to be available for each other for sex (i.e. is what “in this genre” refers to) for life. It is unlikely that Hale argued that “property” can enter into valid contracts or be bound by them. Nevertheless, it is true that the argument is demeaning and was later rightly rejected in UK and US law.
In the United States, it was first rejected in 1976, by the legislature of Nebraska, a state supposed to pass anti-abortion laws if deer is reversed. The Husband Exemption was not rejected by all states until 1993 – and some states, such as the pro-abortion state of California, still treated marital rape differently from other rape. In the meantime, some state courts have thrown out the exemption as unconstitutional, beginning with New York in 1984, and the strongly anti-abortion state of Alabama in 1986. With that legal history in mind, it is clear that the attempt to link opposition to abortion with support for marital rape is flawed.
Overall, Hasday’s accusation that Alito’s draft opinion is based on faulty history or an outdated and demeaning view of women’s rights does not stand up to scrutiny. This and other misguided efforts to demonize critics of deer deserve to be analyzed and refuted so that, ideally, those who attempt them eventually stop changing the subject and start discussing the ugly realities of abortion.