#390 Musings Beyond the Bunker (Wednesday June 29)
Good morning,
ALITO GOT THE HISTORY ALL WRONG
The Court in Dobbs points out that for due process to protect a right, it “must be objectively and deeply rooted in this Nation’s history and traditions.”
Alito asserts that our nation’s view of abortions was that a “post-quickening” abortion (roughly after the 25-week mark) was deemed a homicide, while stating that there was little comment on “pre-quickening” abortions. So, the absence of an affirmative statement in a legal case must mean it wasn’t legally protected, in Alito’s analysis. This is like suggesting that something that is ordinary and typical must nonetheless be stated in legal treatises or case law in order to be real. And while the court cites a few early cases about pre-quickening abortion being a homicide, these focus on whether the doctor administered a potion to the woman against her will.
What Alito misses, no doubt intentionally, is the knowledge and practice of the people who framed the Constitution and the world in which they lived. In eliminating this important phase of history, and in limiting his review to reported cases, rather than practical facts, he manipulates history to his own end.
BEN FRANKLIN AND THE COMMON KNOWLEDGE
Exhibit #1 is founder Ben Franklin. Molly Farrell notes in her article, “Ben Franklin Put and Abortion Recipe in His Math Text Book”:
“…[A]bortion was so “deeply rooted” in colonial America that one of our nation’s most influential architects went out of his way to insert it into the most widely and enduringly read and reprinted math textbook of the colonial Americas—and he received so little pushback or outcry for the inclusion that historians have barely noticed it is there. Abortion was simply a part of life, as much as reading, writing, and arithmetic.”
The book was Franklin’s American update to The Instructor, a “how to” book on a variety of subjects, published in in the U.K. in 1748. Franklin inserted some of his own information, which he said was “the whole better adapted to these American Colonies…” One of his changes was adding John Tennent’s The Poor Planter’s Physician. In that treatise was to be found the recipe for at-home abortions.
Ms. Farrell goes on, “…Franklin’s choice to get Tennent’s pamphlet into the hands of readers all over the colonies meant that anyone learning to read, write, and calculate with his book would also have access to the leading available treatment for ending a pregnancy…”
Ms. Farrell’s closing is a clear indictment of the ruling in Dobbs:
“As an early American literary critic who works on the history of numeracy, I thought of Franklin’s book multiple times while I read the news this past week… the ruling on Dobbs v. Jackson Women’s Health will render abortion effectively illegal for myself, my students, and my daughters here in central Ohio, where new Intel factories are about to require tens of thousands of workers with advanced quantitative skills. For many of us, abortion access… keeps us in school; it keeps the kids we already have fed and housed while they’re in school. And it is simply health care—like treatment for the umpteen other maladies listed in the colonial medical handbook.”
Alito’s draft argues that ‘Roe and Casey must be overruled,’ pointing out that ‘the Constitution makes no reference to abortion.’ This is of course silly, as the Constitution also makes no reference to freedom of travel, autonomy, and dignity.
ABORTION WAS RUN-OF-THE-MILL AND LEGAL AND A FOUNDER CONFIRMS THIS
Exhibit #2 is what at least one founder has written. Laura Briggs writes in the Washington Post:
“…[What if the Constitution was silent on abortion because its drafters believed that it — like virtually all medical procedures — should remain unregulated as a matter of law? How, in other words, do we interpret that historical silence? The law and courts were indeed largely quiet on the subject of abortion when the Constitution was written in 1787. But one of its drafters left a record of what he intended by that silence… following the common law, he believed abortion was not the business of courts or lawmakers…”
“James Wilson, who wrote the Constitution’s preamble, weighed in on the subject of abortion law in a 1790 lecture. Quoting William Blackstone, a preeminent authority on English common law, Wilson told his audience: ‘In the contemplation of law, life begins when the infant is first able to stir in the womb.’ Abortion, in Wilson’s view, could not be regulated by law before that time.”
THE COLONIAL PERIOD
Ms. Briggs then goes on past the colonial period:
“…in 1845 the Massachusetts Supreme Judicial Court found that “at common law, no indictment will lie, for attempts to procure abortion with the consent of the mother, until she is quick with child.”
“New Jersey’s Supreme Court found in the 1849 case, State v. Cooper, that “to cause or procure abortion before the child is quick, is not a criminal offence [sic] at common law, and has never been made so by statute in New Jersey…If the pregnant woman did not consent, Chief Justice Henry W. Green said, then the act was illegal, because it was a poisoning or assault on the mother — but not on the fetus, which had no autonomous legal existence.”
WHEN IS LIFE?
Briggs notes that the Cooper case weighed in on what constitutes life medically versus legally: “It is not material whether, speaking with physiological accuracy, life may be said to commence at the moment of quickening, or at the moment of conception, or at some intervening period. In contemplation of law life commences at the moment of quickening, at that moment when the embryo gives the first physical proof of life, no matter when it first received it.”
Gillian Brockell notes in her Washington Post article: “Unlike many antiabortion activists today, most religious and legal scholars at the time [late 18th and early 19th centuries] did not think “ensoulment” began at the moment of conception but at the time of “quickening” — when a pregnant person can feel fetal movement, generally between 16 and 22 weeks. The vast majority of Alito’s historical references concern cases of abortion after the fetus was ‘quick…’”
BUT WHAT ABOUT THE ALITO’S HISTORICAL ANALYSIS?
Briggs eviscerates Justice Alito’s historical references, as follows:
“As with all things about abortion in recent years, there is another side, largely represented by Joseph Dellapenna, a law professor at Villanova University who has written a book about the history of abortion. Alito’s draft relies heavily on him. Dellapenna claims that there was criminalization of abortion in European common law from the 1200s through the 1500s. This hardly seems relevant. These cases involved assaults on pregnant people resulting in stillbirth, which is not the same thing as medical — or even herbal — abortion. There is also no evidence that these cases were known to the U.S. courts, much less the writers of the Constitution.”
“A handful of colonial U.S. cases are also cited to argue for a legal concern about abortion before quickening, but these involve murder and beating of pregnant women, rape or paternity claims. And there is no evidence that anyone was ever convicted of the death of a fetus in early pregnancy, only that the existence of the fetus or stillborn baby was relevant to the court in cases of crimes against women.”
Gillian Brockell also notes that “Justice Samuel A. Alito Jr. calls himself an originalist, someone who thinks the Constitution should be interpreted only by how it would have been understood by the Founders when they wrote it…”
“At least seven times, Alito cited Sir Matthew Hale, a 17th-century jurist who didn’t think marital rape was possible because wives were the property of their husbands, and who sentenced at least two women to die for witchcraft. Alito also cited a legal text from 1250 by Henry de Bracton that, in another section, says women are inferior to men, and that they sometimes give birth to literal monsters.”
Ms Brockell raises my earlier concern, in that Justice Alito discusses legal cases and English common law, but only to the extent they favor his argument, while he fails to discuss the real world (a real world occupied by Ben Franklin’s treatise and James Wilson’s notes). Brockell notes how common the practice was in early America:
“In the 18th-century United States and England, abortion was common enough that there were slang terms for it, like “taking the cold,” “taking the trade” and “bringing down the flowers.” It was less-effective and more dangerous than it is now; women seeking abortions often died from infected wounds or poisons. And it was generally unregulated, except for a few instances in England and one in colonial Maryland mentioned by Alito in the draft opinion.”
CONCLUDING THOUGHT
Don’t always listen to a Supreme Court Justice’s pronouncements on history. First, they aren’t historians. Second, he or she is relating only those arguments (and only within a chosen time frame) that support his or her position. Third, in the modern era, the writer apparently is unconstrained by a need to articulate contradicting sources and weighing their merits.
In this case, the Supreme Court gives fuel to the sentiment, particularly among our youth and young adults, that no institution can be trusted. The Court has descended to the point of mis-citing history and engaging in legal justifications to create the platform to further a religious view of life, limit a woman’s freedom and expand the role of government.
The ramifications of this case go well beyond whether a woman controls her own body and childbearing decisions (which would be bad enough) and call into question the role of the Supreme Court as arbiter of our rights and the operations of our government.
Have a good day,
Glenn
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