In this article I will discuss what I regard as the fundamental flaw in today’s abortion decision from the Supreme Court. To start, understand that the prior cases affirming abortion rights in Roe and Casey were rooted in the word “liberty” of the due process clause of the 14th Amendment. Those precedents found that abortion, like some other privacy related rights (such as contraception from Griswold, and marriage from Loving) were “fundamental rights” in our history and tradition, and simply because of their deeply intimate and personal nature.
Justice Alito focused on the history, stating that the correct standard is to extend such substantive due process “liberty” rights only to those long established in our historical legal traditions. He then went through that history asserting that abortion was never such a right and was, in fact, often prohibited by law.
Along the way Alito’s rendition of that history repeatedly (14 times by my count) relied upon a 17th Century English judge who sentenced women to hang for witchcraft. His name was Matthew Hale and amongst his early profound influences on American legal tradition was as guidance for the Salem witch trials. His most recent “contribution” to the law of the land in America, was today.
“Historical legal tradition” regarded women as second class citizens, subordinate to men, and in many ways slaves to men. Alito argues it’s all good now because women are equal partners in our democracy, with full voting rights. He dismisses as speculative arguments that women have become more equal partners in our society because of control of their reproductive rights. Alito claims women can now protect their rights by voting, and that all this decision does is return the issue of abortion back to the ballot box.
Yet Alito’s decision relies on a history that treated women as legal trash. For most of our nation’s history women were not even allowed to vote. The vast bulk of this nation’s history excluded women from the Supreme Court, or even going to law school for that matter. In our national history we have had 115 Supreme Court justices, five have been women. For the entirety of our nation’s history, to this very day, women have been traditionally (and dare I say “historically”) excluded from office of President. Notably a woman was excluded from the Presidency, even upon winning the popular vote, by a system set up by men that now amplifies the votes of conservative men. The denial of that woman of the office of the Presidency, against the will of the American people, is what allowed the packing of this court to make its ruling against women’s reproductive rights.
Alito ignores how the history he relies on might have been different had women been equal partners with men for it. Alito’s entire argument relies on a time when the scales were unbalanced. So since the scales were unbalanced then, that justifies their remaining so.
To sum up Justice Alito’s argument, women have no right to abortion now because they had no such right when they were burned as witches, when it was legal for husbands to beat and rape wives, and when women could not participate in democracy at its most basic level by even voting. A history of courts in this nation, and in Old England, when only men could be judges, is the basis for deciding what women’s rights are today.
Women are subordinate now because they were subordinate then. The good ole boys of the good ole days continue to rule today.
