In its May 7 cold opening, Saturday Night Live took a jab at Justice Samuel Alito’s reference to a Dark Ages legal treatise. Host Benedict Cumberbatch, playing a man of some authority with a Medieval bowl cut, proposed eliminating abortion. The chatter among the skit’s characters — which included two other white men making decisions, an almost 12-year-old girl of child-bearing age objecting to the proposal and a Black man fully aware he has no rights — included some laugh-to-keep-from-crying one-liners like “That’s why we’re also offering maternity leave. When you’re done with 20 years of continuous maternity, you can leave” and, in response to a question about making exceptions for rape or incest, “But those are the only kinds of sex!”
It was a caricature, but it hit at the heart of the problem: Justice Alito’s tortured logic, as displayed in his draft opinion for Dobbs v. Jackson Women’s Health, relies on norms and laws from times when women’s only value was in producing heirs and Black people were property. He repeatedly cites 17th century English lawyer Matthew Hale and a 13th century law treatise written by Henry de Bracton.
Hale famously wrote that rape accusations were too hard to defend against, so any accusation should be taken with a large spoonful of salt (paraphrased, of course). He’s also frequently cited for his insistence that man cannot rape his wife, because once they are married, the wife gives her unretractable consent to be used by her husband. And, he presided over the trial (allowing dubious evidence) that found two English women guilty of witchcraft and executed by hanging in 1662.
de Bracton wrote on a variety of subjects, including abortion and feudal structures. In one of his publications, de Bracton said, “Women differed from men in many respects … their position is inferior to that of men.” We can either interpret this as raging misogyny or, at best, an acknowledgement that women had significantly fewer legal rights and protections than men at the time.
You know what’s even worse than deciding a modern case of women’s reproductive rights based on the writing of old men from centuries ago? Even in the Dark Ages, women had greater access to abortion than they will if the Supreme Court overturns Roe v. Wade.
Because hundreds of years ago, abortion was only outlawed after the “quickening” — or the stage of development when movement can be felt by the mother. This is generally anywhere from 16 to 22 weeks, according to the academic article “Fetal Movement” available from the National Library of Medicine. Alito incorrectly puts the window at only 16 to 18 weeks, then erroneously infers that centuries-old laws against abortion mean that abortion is prohibited by “at least” 16 weeks.
Alito also deliberately misinterprets the men he cites. de Bracton is careful to state that abortion is unacceptable after the fetus is “formed and animated” — when movement can be felt. Hale disliked abortion, but even he acknowledged that abortion was technically an “ecclesiastical” crime — a crime to be punished by the church, not the court law. The full quote that Alito fails to use is abortion “is not murder nor manslaughter by the law of England because [the child] is not yet in rerum natura, tho it be a great crime … .” (“Rerum natura” means “in the realm of material things,” according to Merriam-Webster.)
Hale’s contemporaries recognized a fetus as a child only outside the womb. For example, in 1557, William Staunford ruled that abortion could not be murder, because murder happens to people already born. Even Edward Coke, whom Alito’s cites and misrepresents, wrote that a fetal death by poisoning or beating is not murder, but if the child is born alive and then dies from injuries, that is murder. Coke specifically writes: “… for in law [the child] is accounted a reasonable creature, in rerum natura, when it is born alive.”
Justice Alito’s draft ruling drips with misogyny and disdain for women. It relies on legal treatises from eras when women were their husbands’ property and their primary function was to deliver male heirs. Worse, it willfully misrepresents the law of the time to strip modern women of what little autonomy their ancestors possessed. Alito’s ruling wouldn’t take us back to the 1600s or even the 1200s — it would catapult us into a dystopian future where women have no reproductive rights at all.
