Alito's America: Where 'eminent' jurists believe in witches but women are the hysterics

·6 min read

Here we are in the Year of Our Lord 2022, where those who’d burn witches at the stake are eminent jurists but women are the real hysterics.

There is very little that remains unsaid, or un-yelled, in America today about abortion.

For those of us who would have preferred to make our own gynecological choices without state lawmakers at our exam table stirrups, it’s a devastating, exhausting moment. The grief is surreal, and we know it’s only begun.

For those of us who sincerely hold the belief that the Supreme Court has been facilitating murder in plain sight for decades, I can only imagine the profound joy and relief. Contrary to popular anger, I have deep wells of empathy for those believers, and I don’t think our national reckoning in building those bridges will come from any courtroom.

Why did Alito cite Sir Matthew Hale?

The latest blow to women’s bodily autonomy came on June 24, when the Supreme Court’s opinion was officially revealed. As the news broke, the first name I searched for wasn’t “Dobbs” or “Roe” or “Wade” – it was for one Sir Matthew Hale, believer of witches, and cited by Supreme Court Justice Samuel Alito's majority opinion.

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In the draft of the opinion leaked in May, Alito indicated that he would be hitching his scholarly wagon to the English judge to illustrate that anti-abortion sentiment has “an unbroken tradition of prohibiting abortion on pain of criminal punishment … from the earliest days of the common law until 1973.”

It’s a foundation of Alito’s argument that anti-abortion sentiment goes way back yonder into history. As outlined by "great" and “eminent common-law authorities” like Hale, abortion has a long, storied history of being criminalized.

To put it technically: Justices don’t make the rules, people! They’re just humble interpreters of the cold, hard historic facts.

'Notorious in women’s history'

But one missing footnote from the majority opinion: Alito, along with many of his originalist colleagues, is citing a man whose greatest scholarly hits include clearing the way for men to legally rape their wives and sentencing two women accused of witchcraft to death – an opinion that ultimately created the model for the Salem witch trials.

In 1692-93, the Salem witch trials resulted in the conviction and hanging of 19 people.
In 1692-93, the Salem witch trials resulted in the conviction and hanging of 19 people.

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"Mathew Hale is notorious in women’s history," said Jill Elaine Hasday, a distinguished McKnight university professor and the centennial professor of law at the University of Minnesota Law School. She wrote an excellent piece in May about Hale’s starring role in the leaked draft. "As a 17th century judge, he was regressive and considered behind the times even in his own day."

"The reason I know Matthew Hale was that he has had an enormous impact on law of rape," Hasday told me, explaining that Hale's most prominent gift to humanity was a treatise that would become the dominant defense for centuries for men who raped their wives. But he's perhaps best known, she acknowledged, for his invaluable contributions to adjudicating witchcraft.

In fairness, it’s hard to imagine what might have broken the tradition of Alito’s own judicial ideology from the time in his confirmation hearings in 2006, when he assured Congress that Roe was “an important precedent of the Supreme Court" and that it had been challenged many times. Seems like a witchy spell is the only logical explanation here, since political and popular influence has no role in the court's decision.

And to be fairer still, Alito cites Hale in a grouping with other, much more reasonable scholars like Henry de Bracton, who didn’t bother much with Salem’s lot but who did say, "Women differ from men in many respects, for their position is inferior to that of men."

Bracton, ever the progressive, would even make allowances for verified virgins claiming rape. Should “law-abiding women sworn to tell the truth as to whether she is a virgin or defiled" pass ye old lie detector test, Bracton suggested her defiler could have his testicles cut off or his eyes ripped out. Bold, huh?

Even tamer, Alito cites William Blackstone, another "great" and "eminent" thinker who helped formalize the notion of coverture – the idea that when a woman marries a man, her identity ceases to exist.

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Hope for a future free of witch doctrine

Now listen, I get that we can’t scrub every historic figure for purity to match our modern ideals. But dream with me here.

What if a more perfect union could be formed without any sort of input from men who saw rape as a non-crime but cauldrons and eye of newt as a legitimate national security threat? Would that maybe be a nice treat for women being told to hand over their uterine rights?

Dreaming bigger still – what if the people to whom we gave lifetime appointments to decide our inalienable rights gave more credence to what a majority of living Americans wanted than to the screeds of long-dead men who thought most humans were property anyway and would have startled at the sight of a lightbulb? Would democracy turn to dust?

It's radical, I know. After all, we’d have to question the court’s entire legitimacy if the justices weren’t so perfectly insulated from the whims of public opinion. Thankfully, a majority of them were appointed by men who lost the popular vote, so no distractions of human impact there.

Asked whether she was surprised Alito held onto his common-law safety blanket in the final opinion, Hasday said, "I think Justice Alito’s decision to leave every single reference to Matthew Hale in the final version of his majority opinion overturning Roe is yet another expression of his confidence in himself and his power."

His power.

Burned at the stake or by a thousand legislative cuts, women will die at the hands of a court that is so comfortable in that power that it won't challenge the wicked spell cast at its conception: the curse of a nation built only for white men, where a belief in women’s basic humanity isn’t a prerequisite to decide their fate, and a belief in witchcraft and the right kinds of rape can't cancel you, even centuries on.

An unbroken tradition, indeed.

Casey Blake is the voices editor for USA TODAY Opinion. Follow her on Twitter: @CaseyBlakeAVL

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This article originally appeared on USA TODAY: Supreme Court abortion: Alito cites jurists who believe in witches