Opinion: A term drenched in misogyny

  • The U.S. Supreme Court building in Washington, D.C. Daniel Slim / Getty Images via TNS

Published: 8/15/2022 6:03:31 AM
Modified: 8/15/2022 6:00:03 AM

Jonathan P. Baird lives in Wilmot.

I’ve been trying to think of the right metaphor to describe the U.S. Supreme Court’s last term. I would settle on “train wreck.” The major problem with the characterization of train wreck is the fact that most train wrecks can get cleared away relatively quickly and trains can get back on the tracks and running. The damage is not necessarily long-lasting. That cannot be said about the Supreme Court’s last term.

The damage done will be long-lasting. Whether it’s guns, climate change, criminal defendants’ rights, Native American tribal sovereignty or religious liberty, the defeats were epic. But they pale next to the harm done to abortion rights in the Dobbs case. Taking away a constitutionally protected right that has been guaranteed for 50 years has never happened before. Up until the Dobbs case, the Constitution safeguarded a woman’s right to decide for herself whether to bear a child. Now the Court has given that right to the state.

The idea that a court would take away a given right is counterintuitive. While American courts have a checkered history, we generally expect that courts will bestow rights, not short-circuit them.

What’s disturbing about Justice Samuel Alito’s majority opinion in Dobbs is not just the holding that there is no right to abortion, it’s also his reasoning. It reeked of misogyny as well as a one-sided grasp of history. Women simply do not figure in the decision. That is true even though as an issue abortion could not be more exclusively about women.

Justice Alito argues that the right to abortion is not deeply rooted in our nation’s history and traditions. He says the right to abortion is not mentioned in the 1787 Constitution. Nor is it an unenumerated right. Of course, the words “woman” or “sex” are not mentioned in the Constitution. That did not change until 1920 when the 19th Amendment was added to the Constitution and gave women the right to vote.

In reading Justice Alito’s opinion, you get no sense of the profound sexism that has shaped American history. Fifty-five white men crafted the Constitution. As Jill Lepore has written, women were not “part of the political community embraced by the phrase “We the People.”

In every respect, women were second-class citizens. There were no women judges or legislators. Neither could women run for or hold office. A patriarchal system relegated women to the domestic sphere to be wives and mothers. Men virtually owned their wives. When women married, they lost their legal identity. They couldn’t own property, control their own money or sign legal documents. Domestic violence was practically a norm. There was no such thing as marital rape. Married women had no right to say “no” to sex. Both English and American jurisprudence did not see husbands as ever guilty of the rape of a wife.

Based on the Dobbs opinion one might conclude that Justice Alito had never heard of women’s liberation. Alito conveys no sense of appreciation of any women’s history. It’s telling what legal authorities he cites in Dobbs. Alito has a fixation on medieval men. Most prominently he cites a 17th-century English jurist, Sir Matthew Hale, who he calls a “great” and “eminent” legal authority. He mentions Hale more than ten times. Hale lived from 1609-1676.

In 1662, Hale presided over the trial and execution of two women, Rose Cullender and Amy Duny, for witchcraft. The trial became a model for the Salem witch trials which were held 30 years later. Hale found independent women to be a threat to society. If not owned by a husband or a father, Hale believed women could become satanic. Hale believed women’s bodies belonged to men. He was steeped in the Christian religious view that women were made from Adam’s rib. Beating your wife was encouraged as a corrective tool.

Probably Hale’s most significant “contribution” to legal scholarship was his defense of marital rape. It remained the legal standard in the U.S. until the 1970s. Law Professor Jill Hasday writes that she has read hundreds of American judicial opinions citing Hale. For centuries, male legal authorities like Hale did not believe women had any bodily autonomy.

Professor Hasday goes on to say that the reason Alito cites Hale is that he wants to establish that the early American legal system was opposed to abortion. But Alito botches the history. Although little remarked on, the American Historical Association and the Organization of American Historians issued a joint statement criticizing the Court decision.

They wrote, “… the court denies the strong presence in U.S. history and traditions at least from the Revolution to the Civil War of women’s ability to terminate pregnancy before the third to fourth month without intervention by the state.”

The Court majority chose to disregard the historians. Before the Dobbs decision, both American historian organizations had written an amicus brief outlining the historical and legal precedents of abortion in the U.S. The amicus cut directly against Alito’s argument that abortion was not deeply rooted in American history.

How anachronistic and messed up is it that Alito would rely on a man from the Dark Ages who believed women could be witches as his authority on reproductive rights? Even by 17th century, Hale was considered a misogynist. Back then, many were already doubting allegations of witchcraft.

By sending abortion back to the states. Alito knowingly is transferring power back to the white right-wing men who control so many state legislatures. He knows his decision will result in abortion care being severely restricted or outlawed in roughly half the states. Now we can return to the era of coat-hanger abortions.

The Republican Party owns this debacle. This was their male supremacist project for the last 40 years. As happened in Kansas, the voters must make them pay.

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