In Leaked Abortion Decision, Justice Alito Relies on Jurist Who Supported Marital Rape, Executed ‘Witches’

The draft Supreme Court opinion striking down Roe v. Wade heavily references Sir Matthew Hale, a 17th century Brit who dehumanized women.

In Leaked Abortion Decision, Justice Alito Relies on Jurist Who Supported Marital Rape, Executed ‘Witches’
Photo:Photo: Alex Wong (Getty Images); John Michael Wright (Wikimedia)

In case you needed any further proof that the modern anti-abortion movement is an outgrowth of many centuries of virulent misogyny and violence against women, Justice Samuel Alito’s leaked opinion draft striking down Roe v. Wade relies heavily on a 17th century English jurist who had two women executed for “witchcraft,” wrote in defense of marital rape, and believed capital punishment should extend to kids as young as 14.

“Two treatises by Sir Matthew Hale,” Alito wrote in his argument to end legal abortion across America, “described abortion of a quick child who died in the womb as a ‘great crime’ and a ‘great misprision.’ See M. Hale, Pleas of the Crown.”

How interesting that Alito would cite Pleas of the Crown! That’s the text, published in 1736, 60 years after Hale’s death, that defended and laid the foundation for the marital rape exemption across the world. Let’s go straight to the text:

“For the husband cannot be guilty of a rape committed by himself upon his lawful wife for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband which she cannot retract,” Hale wrote.

Allowing marital rape sounds pretty antiquated, but it was actually legal in many U.S. states up through the 1990s and continues to be allowed, or at least treated quite differently under the law, in some states, than non-spousal rape. Thanks, Mr. Hale!

Also among Hale’s greatest hits: sentencing two women to death for witchcraft at a time when “the more enlightened” people of the 17th century had already begun to doubt the existence of witchcraft—an opinion the Salem, Massachusetts, judges relied on in their notoriously deadly witch trials. (According to The Boston Globe, 25 people were killed during those trials: “All 19 who were executed through a hanging died at Proctor’s Ledge. Five others died in jail, and one was crushed to death.”)

It’s quite fitting that Alito would cite this guy’s opinion on abortion in deciding to revoke the right from the American people, nearly a half century after Roe legalized the health procedure in 1973. The reason Roe was needed in the first place is that American women were dying from unsafe, so-called “back-alley” abortions.

As many have pointed out: The movement to ban abortion is not about and has never been about protecting fetuses. It started as a way to galvanize conservative voters in support of racial segregation—to motivate misogynistic people who really only care about punishing women to also turn out in support of the entire right-wing agenda.

And so, here we are, in the year 2022, about a month or so from the Supreme Court striking down the basic human rights of half the American population based in part on the opinion of some guy in the 1600s who wanted men to be able to rape their wives. Nevermind that a strong majority of the country wants Roe to stay intact and has absolutely no say in the matter. Perfect democracy, no notes.

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