Who was Matthew Hale, the 17th-century jurist that Samuel Alito invokes in his draft overturning Roe? A good question. Alito prides himself as an originalist.
“In his leaked draft opinion overturning Roe v. Wade, Supreme Court Justice Samuel Alito leans heavily on the scholarship of… English judge Sir Matthew Hale to underpin his argument that prohibiting abortion has a long ‘unbroken tradition’ in the law.
“Many legal scholars disputed Alito’s… reliance on Hale because of what the jurist’s writings reveal about his attitudes toward women. Hale is notorious in the law for laying the legal foundation for clearing husbands from criminal liability for raping their wives, and for sentencing two women accused of witchcraft to death, a case that served as a model for the infamous Salem witch trials 30 years later.
As ProPublica noted: “Hale’s influence in the United States has been on the wane since the 1970s, with one state after another abandoning his legal principles on rape. But Alito’s opinion resurrects Hale, a judge who was considered misogynistic even by his era’s notably low standards.”
Boston Globe: “Many historians disagree with Alito’s argument. In an amicus brief submitted in the Mississippi abortion-rights case before the justices, the American Historical Association and the Organization of American Historians counter that up until the Civil War, most states barred abortion only in the later stages of pregnancy and that abortions before fetal ‘quickening’ were legal..”. Quickening, “in English common law, occurs when a mother can detect fetal movement, typically between four and six months of pregnancy.”
Thus it is a self-selected, self-affirming argument.
The Daily Skimm laid out in scary detail the potential ramifications of the ruling.
“The US already has the highest maternal death rate of any developed country. Overturning Roe could make that worse. Nearly half of OB-GYNs in the US may soon be working in the 26 states expected to ban abortion. But if they’re not trained, or if they’re out of practice, or if they’re afraid to use abortion medicine or procedures (think: because they could be sued, or even charged with homicide), curable situations could turn life-threatening or deadly. Think, in the case of:
“Miscarriages: About 1 in 4 pregnancies end in miscarriage and women’s bodies don’t always pass fetal tissue completely on their own. At that point, most American women are offered a pill or surgical procedure — essentially, an abortion. In places where abortion is heavily restricted or not performed, those options may not be available for weeks (if at all), resulting in serious health risks and trauma.”
“Ectopic pregnancies: These pregnancies are not viable since they occur outside the uterus and can be fatal for the mother. At the moment, no US state has banned or criminalized the procedures and drugs that treat ectopic pregnancies. But some state legislators (see: Missouri) have pushed for that, while others (see: Ohio) have invented fantasy procedures not known to science as a workaround.
“Multiple pregnancies: The more fetuses a woman carries, the higher the risk for everyone involved. This can commonly happen during IVF. So doctors may recommend procedures that remove some fetuses (think: ones that are unviable or have severe health issues) so others — and the mother — can survive. Those reductions are already illegal under Texas’s recent abortion ban, and more states may follow.
“Domestic violence: The leading cause of death for pregnant and postpartum women in the US is homicide, according to one study. We’ll say it again: homicide. And data suggests her partner is often responsible. For years, research has shown that partner violence gets worse during pregnancy. And for women in abusive relationships, being denied abortion may make it harder to leave — despite the very real dangers.”
The narrative that all of these “unborn children” will be saved to brighten someone else’s life is not supported by biology, sociology, or history. See also, from the Weekly Sift: What Alito wrote and Who’s to blame for overturning Roe? Plus Last Week Tonight with John Oliver.