Women’s Rights: How Far Back in Time Will our Legal System Go? by Janet Maika’i Rudolph

I was in the process of writing this blogpost last week when the Arizona supreme court decided to turn abortion rights back to the civil war era (1864). This was a time when women had no rights at all and abortion from conception was illegal. But civil war era laws are downright quaint and modern compared the legal underpinnings of the supreme court’s Dobbs decision.  

In his decision, Mr. Alito cited four “great” and “eminent” legal authorities, Henry de Bracton, Edward Coke, Matthew Hale, and William Blackstone. For perspective here are their dates. 

Henry de Bracton  c. 1210 – c. 1268
Edward Coke 1552 – 1634
Mathew Hale 1609-1676
William Blackstone 1723 –1780

To help me understand Alito’s logic, I read up on some conservative commentary. Here is what I learned: When the founding fathers needed to create legal documents, they didn’t create them out of thin air. They relied on the logic of the four men (and others) listed above. Yes, they did pick some enlightened aspects of these thinkers of the time, esp. in regard to the rights of the common people in relation to royalty. The thought of commoners having rights was revolutionary in its day. But as we have learned so painfully, our founding fathers limited who those rights applied to. They did not take into consideration the rights of anyone other than landowners, which at the time meant white men.

When supreme court justices claim they are “originalists” that means they want to not only take us back to the founding days of our country but even further to those who inspired them (see dates above). The only problem is these men lived a world that relied on religious legal theory, women were afterthoughts and people of color were not considered at all. 

It flies in the face of common sense and basic human rights to take us back so far in history. Even conservative justices can understand that life changes and new thinking can offer improvements. I don’t hear any of them proclaiming that because there was no electricity during the founding days of this country, they will live without it. I am sure not one of them would refuse antibiotics for an infection because there were none in Matthew Hale’s time.   

Matthew Hale, a misogynist witch hunter who is known to have sentenced at least two “witches” to death, continues to have outsized influence on our legal system. We might think we have left the days of burning witches behind us, but the Dobbs decision and its justifications make clear we have not

Hale’s writings about rape are chilling. He wrote, “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.”

He also wrote about how women were untrustworthy and rape often a specious charge, “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.”

These words still echo in our modern-day world. Into the 1970s, no state court would charge a man for raping his wife, no matter the brutality. And even until today, a woman is considered a liar until proven otherwise esp. when charging rape. This keeps many women from coming forward as it is not only humiliating but opens her up to an examination of her own life to sit in judgement over what she might have done to “cause” her own rape.  

This brings us all the way back to the Malleus Malificarum (1400s) which famously declared, “All witchcraft comes from carnal lust, which is in women is insatiable. . .” The punishment for such “carnal lust” was death. Is this fundamentally different from the death that modern women with fatal pregnancy conditions face? Pregnant women with sepsis? Women bleeding out in parking lots before they are close enough to death to be eligible for care?

Many anti-abortion proponents will say things like, “we are compassionate because we support exceptions for rape, incest and the life of the mother.” This doesn’t work in practice. It means that a woman in what is quite possibly the most stressful time of her life, has to plead her case to a tribunal of Matthew Hale-type jurists who will sit in judgement of her plea. Since the presumption of women is of liars or having engaged in carnal lust, the judges begin from a biased point of view. Picture the women in Texas whose abortions have been denied in the midst of medical crises of sepsis. Some were so physically damaged they my not be able to conceive again. Or the woman in Ohio where the police raided her home and took apart her toilet searching for signs of her “sins.” What were they guilty of? Unsuccessful pregnancy outcomes? Having had sex at all? Having a female body? This is not too different than the days of the witchhunters. Certainly, these jurists are quite OK with women dying in the healthcare deserts they themselves create with their decrees.

I haven’t even gone into the intricacies of IVF, mifepristone and the Comstock Act 0f 1873. That act, which hasn’t been used in over 100 years, controls what can be sent through the mails. Two supreme court justices have already floated reviving that law to prevent any abortion related substances from being mailed including, or especially, pills.

I also haven’t gone into other rights that are at risk from our backward-looking court: marriage equality for same-sex couples (Obergefell v. Hodges), interracial marriage (Loving v. Virginia), contraception (Griswold v. Connecticut), same-sex intimacy (Lawrence v. Texas).

On another brief note: Lest anyone think this is only an issue here in the US, the courts in Uganda recently upheld a gruesome “anti-homosexuality” law authorizing the death penalty (Yep, death again because that seems to be the preferred outcome.) They cited the Dobbs decision in their writing.

Uganda Cited Dobbs in an Anti-LGBTQ Crackdown. Americans Should Worry Too.

Our US constitution was written for less than half the population, even at the time. As advanced as it may have been, it reflects a long-past world where not everyone person was considered equal. Matthew Hale died a long time ago.  Now we need to set him (and his cronies) to rest. And for that we all need to educate ourselves and create a plan for living today.