Samuel Alito’s Antiabortion Inspiration: A 17th-Century Jurist Who Supported Marital Rape and Had Women Executed



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By now, you’ve likely heard the news that the Supreme Court is poised to overturn the national right to an abortion, an expected but nevertheless jolting, devastating blow to reproductive rights. We know The Handmaid’s Tale is about to go from scripted narrative to retroactive documentary thanks to the leak of a draft majority opinion in Dobbs v. Jackson Women’s Health Organization, in which arch conservative justice Samuel Alito writes, in a hateful 98-page screed, that “Roe [v. Wade] was egregiously wrong from the start” and that it “is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” Which Alito obviously knows would lead to abortion care being severely restricted or fully outlawed in roughly half of the country and make it not only a felony to perform an abortion in some states, but a felony to obtain one.

As Slate’s Mark Joseph Stern notes, the draft—which could change before a the final ruling, as could the various justices’ votes—doesn’t just lay out the case for why Roe should be overturned, it goes full scorched earth. Alito, Stern writes, “does not seek out any middle path. He disparages Roe and its successors as dishonest, illegitimate, and destructive to the court, the country, and the Constitution. He quotes a wide range of anti-abortion activists, scholars, and judges who view abortion as immoral and barbaric; there’s even a footnote that approvingly cites Justice Clarence Thomas’s debunked theory that abortion is a tool of eugenics against Black Americans.” The opinion is an appalling, heinous attack on people who have relied on Roe for nearly half a century, and the most sickening part is that the conservative justice clearly doesn’t give a shit that obliterating the landmark ruling will ruin countless lives. In fact, one might argue, that’s all part of the plan. And if you needed further proof that Alito is pure evil and wants to take the U.S. back to a time when women’s bodies were property for men to control, know that one of the people he cited in his opinion was an English jurist who defended marital rape and had women executed for “witchcraft.”

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Yes, Alito literally quoted this guy, who was born in 1609, as a defense for ending Roe v. Wade in 2022. “Two treatises by Sir Matthew Hale,” Alito enthusiastically writes, “described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’ See M. Hale, Pleas of the Crown.” As Jezebel notes, The History of the Pleas of the Crown “is a text that defended and laid the foundation for the marital rape exemption across the world” and reads: “For 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.” Again, Alito used the arguments of this man to bolster his case.

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Taking away the rights of pregnant people is quite clearly just the first step for Alito, though. Per Stern:

[Alito] disavows the entire line of jurisprudence upon which Roe rests: the existence of “unenumerated rights” that safeguard individual autonomy from state invasion. Alito asserts that any such right must be “deeply rooted” in the nation’s history and tradition, and access to abortion has no such roots.

The obvious problem with this analysis is that the Supreme Court has identified plenty of “unenumerated rights” that lack deep roots in American history. Most recently, the court [recognized] the right of same-sex couples to be intimate (2003’s Lawrence v. Texas) and get married (2015’s Obergefell v. Hodges). Alito dismissed both decisions in harsh terms, mocking their “appeals to a broader right to autonomy” as a slippery slope. The “high level of generality” in their reasoning, he wrote, could “license fundamental rights to illicit drug use, prostitution, and the like.”

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