Monday, May 9, 2022

Opinions: Postscript

Ruta graveolens, rue, meaning "repentenance", though as Ophelia says "we may call it herb of grace o' Sundays." Photo via BardGarden.

I found a terrific piece of actual scholarship, as opposed to bloggy poking around in the evidence, in support of my guesses on the legal status of abortion in early modern England, in Carla Spivack, "To 'Bring Down the Flowers': The Cultural Context of Abortion Law in Early Modern England", in William and Mary Journal of Women and Law XIV/1 (2007), which took on the 2006 book by Joseph Dellapenna that may well have been Alito's basic source, Dispelling the Myths of Abortion History, and its assertion that

contrary to Justice Blackmun's historic analysis in Roe, "abortion was considered a serious crime throughout most of European history" and that "courts did... punish abortions before quickening during the Middle Ages."

On the contrary, Spivack shows,

  1. their concerns with abortion were based on its providing a means to enable or conceal extra-marital sex, not on any condemnation of abortion per se;
  2. the early-stage fetus was not accorded full human status; and
  3. most of the cases he cites in support of the illegality of abortion are in fact tort cases brought by pregnant women against people who had assaulted them, causing the loss of a fetus in the process [and] thus offer no evidence of the illegality of abortion.

while there is no evidence, either in common law or ecclesiastical law, of any concern with intra-marital abortion. Late 16th-century and early 17th-century England saw a period of increasing poverty and bad harvests leading to a crisis of vagrants living on the road, including unmarried women and their illegitimate children, and a period of heightened sexual anxiety among the more prosperous, of a worry about illegitimate births and effort to restrain promiscuity. William Shakespeare, who had himself gotten married at 18 to a 26-year-old, three-months-pregnant Anne Hathaway in 1582 with no sign that there was anything less than respectable about the couple, shows some of this preoccupation his later work in Hamlet, probably 1600 or 1601 (it seems pretty clear that Hamlet has broken some kind of engagement with Ophelia that leads to her suicide, but earlier to her having to "wear her rue with a difference" because rue is an herb that can cause miscarriage) and Measure for Measure, 1603 or 1604 (the plot of which is kicked off when Angelo, the corrupt deputy of the absent duke of Vienna, condemns a man to death for impregnating his fiancée). To the extent that abortion was prosecuted in this context, it would mostly likely because the woman had remained pregnant past the "quickening", and the abortion had left the corpse of a fetus; earlier than that, and the miscarriage would be hard or impossible to distinguish from a late period "bringing down the flowers".

So anyway, you know, I was proved fcking right, as we love to say around here. It's an excellent piece and extremely readable, covers all the cases Alito cites and a number of others as well, and should have put an end to this kind of argumentation 15 years ago, but the Republican justices aren't interested in history, only in the outcome they promised Mr. Leo when he got them nominated, Alito most flagrantly of all of them.

The great critical historian William Hogeland, in his "Bad History" Substack, goes it one better with a convincing "originalist" demonstration ("'Deeply rooted in this Nation’s history and tradition': The Bad History in Alito’s Draft Overturning Roe v. Wade") that the whole project, of deciding whether something is or isn't an unenumerated right under the 14th Amendment by showing whether it's "deeply rooted in the Nation's history and tradition" or "implicit in the concept of ordered liberty" is a mistake: nothing like these words is in the 14th Amendment, and they certainly don't provide some kind of test for the Court to go by, they're words the justices have simply been repeating on and off since 1908, without proposing any definitions or explanations or even precedents for how it was supposed to work:

it was just a gut thing back then. They knew what they meant. Such phrasings hark back to a time when a certain kind of person had the job of custodian of the shared political reality.

In these Fourteenth Amendment cases, though, they’d clearly become unsure of how to do that job and were reaching for rules based on the moods of their own custodianship.

The words were evidence that William Henry Moody, Benjamin Cardozo, and William Rehnquist, not to mention Justice Blackmun in the Roe opinion, had all been doing exactly what "originalists" ostensibly think they shouldn't be doing:

For all of the learned reference, going back to and before Magna Carta, this kind of appeal to history is precisely subjective, even national-mythopoetic.

I guess that’s why in the Roe opinion, Justice Blackmun did a similar kind of delving into old common-law traditions. Within a somewhat desperate judicial tradition of draping all things Fourteenth Amendment in tradition, he was hoping to show that deeply rooted in the spirit of our supposedly ancient heritage, early-term abortion was mainly un-indictable.

But I was struck by something implied in Hogeland's italics in that last word. It's somewhat desperate to use the "deeply rooted" formula to prove that a right exists within the Constitutional framework set by the 9th and 14th Amendments (which explicitly state that unenumerated rights do in fact exist), as Moody, Cardozo, and Blackmun all did, but another thing to prove that it doesn't, as Rehnquist claimed (denying a right to assisted suicide in  Glucksberg), is a a god deal more so. In Alito's case, it's an acknowledgment that there's nothing there but "I don't like it".

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