Justice Alito Wants a Return to the 1200's.

I often accuse the Catholic Church of adhering to a 12th century dogma on sex and sexuality devoid of any modern knowledge in terms of sexual orientation and/or medical issues.  Justice Alito is but one of the right wing Catholic members of the U.S. Supreme Court and thus it perhaps should come as no surprise that in drfting the leaked opinion that would overturn Roe v. Wade and place a number of other Court rulings based on the right to privacy and personal autonomy in jeopardy relies on  writings from the 1200's. He also cites the writings of a jurist from the 1600's that views women as not to be belived and largely the chattel of their husbands.  Alito may want to take America back to the 1950's prior to desegregation, the civil rights movement, the feminist movement, and gay rights movement, but his legal reasoning is even more frightening and ominous.   Two columns in the Washington Post look at Alito's - and a possible majority of the Court - reliance on what ought to be long discredited and rejected reasoning.  The first looks at Alito's reliance on jurisprudence (if one can even call it that) from the 1200's.  Here are excerpts:

Many have speculated that Samuel Alito, in his draft opinion overturning Roe v. Wade, is trying to take us back to the 1950s, when White Christian men still ruled.

The Supreme Court justice is actually revisiting the 1250s, when the judge Henry de Bracton completed his summation of English law and custom “De Legibus et Consuetudinibus Angliae.” Alito’s opinion, after mocking the Roe decision for its “discussion of abortion in antiquity,” then provides a discussion of abortion in medieval times: “Henry de Bracton’s 13th-century treatise explained that if a person has ‘struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated … he commits homicide.’ ”

Case closed?

Over the weekend, "Saturday Night Live’s" cold open featured a 13th-century Benedict Cumberbatch proposing such a law against abortion (like the “law we have against pointy shoes”) and then threatening to burn a witch.

In fairness, Bracton’s treatise makes no mention of witches or pointy shoes, according to a searchable version of his work provided by Harvard Law School. But Bracton does have a lot to say about monsters, duels, bastardy, concubines, sturgeon “and other royal fish,” the “pillory and the ducking-stool," and "a judgment with infamy.”

“Where he ought to be executed by the sword he shall not be put to death in any other way, neither by the axe nor the spear, by cudgels nor by the rope,” Bracton informs us. “Similarly, those condemned to be burned alive ought not to be injured by floggings, whippings, or tortures, since many perish while under torture.”

So true! Let’s take a closer look at the 13th-century work from which Alito draws in his cruel and unusual draft — and perhaps glimpse more of the world to which Alito and his fellow conservatives on the court would return us.

In Bracton’s account, “Women differ from men in many respects, for their position is inferior to that of men.” Alito didn’t cite that passage.

Bracton also outlines procedures for “viewing a woman to discover whether or not she is pregnant” in which “discreet women” should in certain instances “carefully examine her by feeling her breasts and abdomen and in every way” to make sure she wasn’t faking. If the exam was inconclusive, the woman could be locked in a “castle at her own cost” where the exam would be repeated daily. Once the woman was found to be pregnant, “the time of conception, how, when, and where, and at what time she believes she is to give birth” was to be made “known to our justices at Westminster.”

In the treatise Alito leans on, women do have certain rights — if they are chaste. “When a virgin is defiled,” Bracton writes, “let her defiler be punished in the parts in which he offended. Let him thus lose his eyes which gave him sight of the maiden’s beauty for which he coveted her. And let him lose as well the testicles which excited his hot lust.”

Alito’s model does not offer much hope for those trying to salvage American democracy. “The king has no equal within his realm” and “is the vicar of God,” Bracton writes, and “there is no greater crime than disobedience.” Some men “are above others and rule over them,” . . . .

[H]is [Bracton's] view of personhood might raise questions in 21st-century America. Bracton categorizes slaves as property: “this slave, this estate, this horse, this garment.” And he explains that “those born of unlawful intercourse, as out of adultery and the like, are not reckoned among children.” Those children “born of prohibited intercourse … are fit for nothing.”

You won’t find those passages in Alito’s draft opinion, either. But this medieval court is just getting started.

The Court's reliance on 13th century knowledge - or perhaps ignorance is the better descriptor - would be comical if it were not so terrifying.  If Chief Justice is worried about the Court's legitimacy in the eyes of the public, this reasoning is sure to destroy the Court's legitimacy entirely.  The second column looks at the Court majority's similar deference to writings from the 1600's that is equally frightening.  Here are column excerpts: 

In his recently leaked draft majority opinion overturning Roe v. Wade, Supreme Court Justice Samuel A. Alito Jr. presents what he sees as his most convincing arguments for permitting legislatures to ban abortion. So what is the best Alito can do? One of his prominent strategies is to repeatedly quote and discuss someone he describes as a “great” and “eminent” legal authority, Sir Matthew Hale.

Most Americans have probably never heard of Hale, an English judge and lawyer who lived from 1609 to 1676. Hale was on the bench so long ago that his judgeship included presiding over a witchcraft trial where he sentenced two “witches” to death.

[A]s that witchcraft trial suggests, Hale’s influence has not been a “great” development if you believe women have equal humanity with men.

Hale is best known for his “History of the Pleas of the Crown,” a treatise published posthumously in 1736 that became wildly popular with judges and lawyers in England and America. In my years studying women’s legal history, I have read hundreds of American judicial opinions quoting Hale’s treatise.

Hale was not writing for women, who were excluded from the legal profession and judiciary. But he had much to say about women. For example, his pronouncements on rape were bedrocks of American law for generations, and their influence persists.

Hale believed that authorities should distrust women who reported having been raped. In his mind, rape was “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Judges and lawyers endlessly quoted Hale’s canard well into the second half of the 20th century. Echoes of Hale’s suspicion of women still reverberate in American law and culture, helping rapists avoid punishment.

Hale also wrote what became the most frequently cited defense of the marital rape exemption, the doctrine that shielded a husband from prosecution if he raped his wife. Hale explained that a woman’s agreement to marry meant that she had placed her body under her husband’s permanent dominion.

Courts and legislatures found Hale’s explanation compelling and repeated it for centuries. Until the 1970s, no state would prosecute a husband for raping his wife — no matter the brutality, no matter the evidence.

Why did powerful men find Hale’s rationale for protecting a husband’s sexual prerogatives so convincing? One reason is that Hale’s words fit smoothly into a legal system that gave husbands control over their wives in virtually every context. That regime remained entrenched for most of American history, and important aspects persisted even after sex-based disenfranchisement became unconstitutional in 1920.

With this in mind, let’s return to Alito. He discusses Hale so often because he is desperate to establish that the early American legal system was opposed to abortion. He thinks this characterization of the past gives overturning Roe a veneer of legitimacy.

There are at least two problems with Alito’s reliance on history. First, Alito has misrepresented the actual historical record. As abundant historical research establishes, the common law that governed America in its first decades and beyond did not regulate abortion before “quickening” — the moment when a pregnant woman first detects fetal movement, which can happen as late as 25 weeks into pregnancy.

Second, Alito relies on sources such as Hale without acknowledging their entanglement with legalized male supremacy. The men who cited Hale as they constructed the early American legal order refused to give women the right to vote or to otherwise enjoy full citizenship. Relying on that history of injustice as a reason to deny modern women control over their own lives is a terrible argument but apparently the best Alito can do.

Hale was a man who believed women could be witches, assumed women were liars and thought husbands owned their wives’ bodies. It is long past time to leave that misogyny behind.

Alito embodies whay religious belief has no place in the law or public policy.  I would also argue that if Alito and the Court majority rely on this insane justification for their ruling, they need to be barred from modern medical treatment and only afforded what the 1200's and 1600's had to offer.