We Read Alito's 98-Page Leaked Opinion. Here Are The Most Shocking Lines.
Jeremy Stahl, Slate, May 5, 2022
Since Justice Samuel Alito's draft majority opinion striking down Roe v. Wade was leaked on Monday, it has been widely denounced as extremist to the point of being radical. . . .
What many did not anticipate, though, were the startling implications of the way in which Alito reached his opinion. The ultraconservative George W. Bush appointee's opinion coarsened the abortion debate by vilifying "abortionists" and "murderess[es]," opened the door to the court abolishing other unenumerated rights rooted in the 14th Amendment such as the right to birth control and freedom to marry, and allowed for the possibility that legislators might punish people who don't get an abortion but exercise basic freedoms—such as drinking coffee—during pregnancy in a way that might be harmful to "prenatal life at all stages of development."
It's worth considering the most extreme lines in Alito's full 98-page opinion to fully understand just how much Alito has adopted the most extreme and dangerous views of the anti-abortion movement.
Constitutional Rights Not "Rooted In The Nation's History And Tradition," Such As The Right To An Abortion, Are Not Legitimate Rights At All.
Alito repeatedly claims that his opinion only covers abortion and should not "be understood to cast doubt on precedents that do not concern abortion." But if you read the opinion in its entirety, it's clear that Alito lays down the future groundwork for overturning any number of "fundamental" rights that purportedly do not have grounding "in our Nation's history." . . .Alito lets us know which other rights were not "mentioned in the Constitution" or allegedly grounded in our nation's history: interracial marriage, contraception, the right not to be nonconsensually sterilized, the right to reside with relatives, the right to make decisions about your children's education, the "right to engage in consensual" and private "same-sex intimacy," and the right to same sex marriage, just to name a few.
Alito implies that acknowledging rights that are not "deeply rooted in history," such as these, could open the door to protecting the right to "illicit drug use, prostitution, and the like." . . .
Alito Cites Outdated Science And Questionable Common Law From The 17th And 18th Centuries To Justify Abortion Bans That Would Criminalize Women For Terminating Their Pregnancies.
Alito writes:an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973.In delving into this ahistorical analysis, Alito uses the creepiest possible terminology to describe what has been for the last 50 years a common and legal medical practice. He repeatedly refers to reproductive care providers as "abortionists." He obsesses over pre-Victorian medical terms with contested meanings, such as "quickening."Sir Edward Coke's 17th-century treatise likewise asserted that abortion of a quick child was "murder" if the "childe be born alive" and a "great misprision" if the "childe dieth in her body."Alito also approvingly cites language describing one woman who had received an abortion as a "murderess." And he considers other random 17th century punishments for abortion:In 1732, for example, Eleanor Beare was convicted of 'destroying the Foetus in the Womb' of another woman and 'there-by causing her to miscarry.' For that crime and another 'misdemeanor,' Baere was sentenced to two days in the pillory and three years' imprisonmentAlito lays out what he calls a "proto-felony-murder rule" categorizing failed abortions that kill the mother as criminal. As if these passages aren't a disturbing enough foray into questionable science and morality from an era in which women and children were regarded as property of their husbands, he presses on into the 19th century to suggest that the reproductive health care practices of the time were somehow more "scientific" than modern practices. To do this he cites approvingly an 1848 case and terms like "in ventre sa mere":The Solicitor General offers a different explanation of the basis for the quickening rule, namely, that before quickening the common law did not regard a fetus "as having a 'separate and independent existence.'" … But the case on which the Solicitor General relies for this proposition also suggested that the criminal law's quickening rule was out of step with the treatment of prenatal life in other areas of law, noting that "to many purposes, in reference to civil rights, an infant in ventre sa mere is regarded as a person in being."Again, Alito leaves the door open for "personhood" legislation, or even a future ruling recognizing the "personhood" of a fetus:But even if one takes the view that "personhood" begins when a certain attribute or combination of attributes is acquired, it is very hard to see why viability should mark the point where "personhood" begins.What are Alito's primary sources for this dubious framework? One is a 1732 journal called Gentleman's Magazine.
Alito Misleadingly Cites Court Precedent To Claim That Banning Abortion Is Definitively Not Sex Discrimination.
Alito argues:State's regulation of abortion is not a sex-based classification and is thus not subject to the "heightened scrutiny" that applies to such classifications.To make this claim he cites two cases, one post-Roe and another post-Casey. Those are 1974's Geduldig v. Aiello and 1993's Bray v. Alexandria Women's Health Clinic. But those cases were about disability rights for women who experienced complications during pregnancy and the First Amendment rights of anti-abortion protesters, not about abortion itself. Most notably, Alito claims that the Bray court decided the " 'goal of preventing abortion' does not constitute 'invidiously discriminatory animus against women.' " Again, though, that case was about protesters seeking to prevent women from having abortions, not the state mandating an abortion ban. What Bray actually says is this:Whether one agrees or disagrees with the goal of preventing abortion, that goal in itself (apart from the use of unlawful means to achieve it, which is not relevant to our discussion of animus) does not remotely qualify for such harsh description, and for such derogatory association with racism.The key qualifier there is "apart from use of unlawful means to achieve it." One year earlier, the court had upheld Roe in Casey and determined that abortion bans were an "unlawful means to achieve it."
Alito Frames Himself As A Champion Of Women, Who Can Now Decide These Issues At The Ballot Box—Without Acknowledging Those Ballot Boxes Have Been Rigged By Supreme Court Decisions Eviscerating Voting Rights.Our decision returns the issue of abortion to those legislative bodies and it allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office.Alito Compares Roe And Casey To Some Of The Most Abhorrent Precedents In Supreme Court History, Including The Ruling That Upheld Segregation. . . .
Finally, Alito Lays Out A Laundry List Of Reasons Lawmakers Can Have To Ban All Abortions, Including Such Orwellian Straw Men As "Discrimination On The Basis Of … Sex" And "The Protection Of Maternal Health" . . .
The Fact-Free Logic Of Samuel Alito
Jordan Smith, The Intercept, May 4 2022
As a matter of fact, Supreme Court Justice Samuel Alito is wrong.
In a leaked draft of the court's majority opinion in the Mississippi case Dobbs v. Jackson Women's Health Organization, Alito writes that Roe v. Wade and its successor Planned Parenthood v. Casey must be overturned — an extraordinary move that would topple precedent in order to constrict, rather than expand, constitutional rights.
The missive is aggressive and self-righteous and reads like the greatest hits of those who disfavor the right to bodily autonomy. There's the linking of abortion to eugenics, for example. "Some such supporters have been motivated by a desire to suppress the size of the African American population," Alito writes. "It is beyond dispute that Roe has had that demographic effect." The ahistorical comparison misses the fact that an individual choosing to abort their own pregnancy is not analogous to forced sterilization by the state to alter the American gene pool.
And there's the claim that because the word "abortion" isn't found in the Constitution, the right to it doesn't exist. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision," Alito writes. This completely ignores the historical significance of the 14th Amendment, a Reconstruction-era addition meant to ensure individual liberty, including the right to decide whether and with whom to form a family. "Most Americans understand the plain truth reflected in these protections," Elizabeth Wydra, president of the Constitutional Accountability Center, said in a statement. "A person cannot truly be free, and is not truly an equal member of society, if they do not get to decide for themselves this most basic question of bodily autonomy." Alito's opinion, she said, "frighteningly bulldozes past the Constitution."
Alito also dismisses the notion that there are any clearly identifiable reliance issues at stake in discarding abortion rights. In this context, the concept of reliance posits that when expectations have been built around the stability of a particular law or judicial pronouncement, those interests should be protected and the precedent underpinning them upheld. In addressing the issue, Alito comes off as if perplexed: The court knows how to evaluate "concrete" reliance issues like those implicated in "property and contract rights," Alito writes, but assessing an "intangible" reliance is a whole other story. "That form of reliance depends on an empirical question that is hard for anyone — and in particular, for a court — to assess, namely, the effect of the abortion right on society and in particular on the lives of women."
Yet again, Alito is wrong — and there's plenty of research to prove it.
In an amicus brief filed in the Dobbs case, 154 economists and researchers took direct aim at the how-could-we-possibly-know-what-abortion-has-done-for-society nonsense. The brief details a substantial body of research demonstrating that access to legal abortion has had significant social and economic impacts, increasing education and job opportunities for women and reducing childhood poverty.
The expansion of abortion access after Roe reduced the overall birthrate by up to 11 percent. For teens, the drop was 34 percent; teen marriage was reduced 20 percent. Research has revealed that young women who used abortion to delay parenthood by just a year saw an 11 percent increase in hourly wages later in their careers. Access to abortion for young women increased the likelihood of finishing college by nearly 20 percentage points; the probability that they would go on to a professional career jumped by nearly 40 percentage points. All these effects, the economists noted, were even greater among Black women.
"Abortion legalization has shaped families and the circumstances into which children are born," the economists wrote. Abortion legalization reduced the number of children living in poverty as well as the number of cases of child neglect and abuse. "Yet other studies have explored long-run downstream effects as the children of the Roe era grew into adulthood," reads the brief. "One such study showed that as these children became adults, they had higher rates of college graduation, lower rates of single parenthood, and lower rates of welfare receipt."
In other words, the effect of the abortion right on society is not remotely "intangible." There is decades' worth of evidence showing that abortion access has positively impacted women and their families. "But those changes are neither sufficient nor permanent: abortion access is still relevant and necessary to women's equal and full participation in society," the economists wrote, challenging Mississippi's argument in the Dobbs case that contraception and employment policies like parental leave have essentially made abortion unnecessary. . . .
I was a 19-year-old sophomore at the University of Maryland [in 1991] when I found out I was pregnant. I freaked out; I did not want to be pregnant. I knew I needed an abortion, but I didn't have the money. I gathered up a bunch of change and called my mom from a pay phone. She didn't miss a beat when I told her I was pregnant. "No, you're not," she said. She sent the money that day. . . .
[W]hile I had a relatively easy time exercising the right conferred by Roe, that is far from a universal experience. For many, Roe was always just a promise on paper. And for decades, those who disfavor reproductive freedom have worked diligently with their conservative elected allies to make abortion all but inaccessible for millions of people living in large swaths of the country. I've watched this happen over the nearly two decades that I've covered assaults on reproductive health access. The burden has fallen disproportionately on people of color, those with low incomes, those living in more rural areas of the country, young people, immigrants, and LGBTQ+ people. Doing away with Roe is only going to exacerbate those inequities. Thirty-six million people of reproductive age live in the 26 states that will outlaw abortion, or are likely to, once Roe falls. It is "unconscionable; it is unjust," Alexis McGill Johnson, president and CEO of Planned Parenthood Federation of America, said on a Tuesday press call.
No court decision can stop abortion, "period, point blank," she said. "People with resources will travel to get the care they need, they always have. Others will self-manage their abortions. And there will be people forced to carry pregnancy against their will."
Fatima Goss Graves, president and CEO of the National Women's Law Center, was blunt. "To say that we are in unprecedented and truly terrifying times would be a gross understatement," she said on the call. Losing the right to abortion would mean we no longer have a Constitution that "recognizes our fundamental autonomy and equality."
Indeed, Alito's arguments in the draft opinion are deceptive and dangerous. And his regressive read of the law places other rights firmly in the crosshairs — including the right to contraception and to marriage equality. In his zeal to overturn Roe, Alito not only dismisses the decades of work toward realizing the ideal of equality, but also the very notion of equality itself.
If It Was About Babies . . .
Leila Cohan, Twitter, May 4, 2022
If it was about babies, we'd have excellent and free universal maternal care. You wouldn't be charged a cent to give birth, no matter how complicated your delivery was. If it was about babies, we'd have months and months of parental leave, for everyone.Samuel Alito's Leaked Anti-Abortion Decision: Supreme Court Doesn't Plan To Stop At Roe
If it was about babies, we'd have free lactation consultants, free diapers, free formula. If it was about babies, we'd have free and excellent childcare from newborns on. If it was about babies, we'd have universal preschool and pre-k and guaranteed after school placements.
If it was about babies, IVF and adoption wouldn't just be for folks with thousands and thousands of dollars to spend on expanding their families.
It's not about babies. It's about punishing women (and all people with uteruses) and controlling our bodies.
Amanda Marcotte, Salon, May 3, 2022
Abortion Has Been Treated As A Fringe Issue By Democrats For Decades. This Is The Result.Samuel Alito has always been the conservative on the court who was least able to conceal the right-wing resentment that fuels him, glowering his way through President Barack Obama's State of the Union addresses and generally being a whiner on the level of Donald Trump. Clarence Thomas might be the most unhinged member of the court, Amy Coney Barret the most uncanny, and Brett Kavanaugh the best at spittle-flecked public meltdowns. But if I had to bet money on who is most likely to spend their nights on sleazy internet forums, whining that feminism has "ruined" women, it would 100% be on the court's creepiest member, Alito. . . .Though heavy with legal-ese, Alito's misogyny shines through like a deplorable beacon. His contempt for the very idea that women are rights-bearing people is not hard to discern, even as he claims to hold no ill will towards them. Sewn throughout this decision is a deep, abiding belief that women simply aren't people in any meaningful sense. Women's lives, ambitions, pain, joys, and autonomy have absolutely no value he can discern. Instead, he treats women as ambulatory uteruses who have no more right to reject a pregnancy than your refrigerator has a right to reject holding your milk and eggs.
The inability — or unwillingness — to think of women as rights-bearing people kicks in early . . . when Alito complains that, "far from bringing about a national settlement of the abortion issue," Roe "enflamed debate and deepened division." The unsubtle implication of this is that if anyone doesn't like women having rights, then well, that right just has to go. The language may be fancier than Donald Trump's "grab 'em by the pussy" rant, but the logic is the same. Yeah, it's your body, ladies, but if someone else wants to use it, as Trump memorably said, you have to let them do it.
Alito's tendency to imagine women as appliances instead of people is inescapable. He blithely dismisses the idea that forced childbirth is a burden on women, claiming medical costs are "covered by insurance or government assistance" and after the baby is born, all a woman must do is "drop off babies anonymously" and should have "little reason to fear that the baby will not find a suitable home." . . .
And if women don't like it, he sneeringly writes, well, "[w]omen are not without electoral or political power," as they still retain their right to vote. It's an argument in such idiotic bad faith that even Twitter trolls don't dare make it. That some women don't like abortion doesn't mean that all women should be denied the right. . . .
Alongside his contempt for women as rights-bearing people, this draft opinion is rife with loathing of any social progress made after the 19th century. Alito repeatedly notes that no right to abortion was legally established before "the latter part of the 20th century," as if the relative newness of the legal right inherently makes it illegitimate. . . .
Women did not have the right to use birth control, have their own credit cards or bank accounts, be paid fairly for their work, or decline sex with a husband until the latter part of the 20th century, either. Jim Crow laws and segregated schools were still legal until the latter part of the 20th century. And, crucially, the rights to have sex in the privacy of your own home — even with someone of the same sex — and to have a same-sex marriage were established even later, in the 21st century. . . .
[Alito] glibly dismisses the possibility that overturning Roe will lead to the overturn of the right to birth control or any LGBTQ rights, however, claiming that those are different because none involve "potential life." . . . [But] it's easy to see how one could argue that contraception and homosexuality threaten "potential life" by redirecting sexual energies away from conception. This isn't outlandish speculation, it is already the argument that the anti-choice movement makes against both legal contraception and legal homosexuality. . . .
[T]he whole of the decision suggests Alito doesn't believe his own claims that other human rights aren't in danger. As Slate's legal expert Mark Joseph Stern noted on Twitter, Alito's one sentence is contradicted by paragraphs of contemptuous language about the illegitimacy of all those decisions from "the latter part of the 20th century" and equally lengthy diatribes about how the court's duty to respect precedent is overrated. . . .
Republicans have elsewhere indicated that . . . After they end Roe, they're coming for Obergefell v. Hodges, the decision that legalized same-sex marriage. After all, the conservatives on the court — including Alito — voted against Obergefell the first time. Now they have another crack at it, with a majority that opposes the right. Anyone would be a fool to think they aren't eager to take it.
Anna North, Vox, May 5, 2022
For decades, abortion has been treated as a fringe issue in American politics. . . .
For much of the 2000s and 2010s, though, abortion was routinely sidelined in presidential debates. It was compromised away when Democrats wanted to enlarge their tent by welcoming more socially conservative candidates and voters. Activists have campaigned for years to get politicians to even bring up abortion in speeches — President Joe Biden himself did not use the word until more than 200 days into his term, and then only in a written press statement, according to the abortion rights group We Testify.
In Democratic circles, especially, abortion has often been banished to the sidelines — it's been seen as a social issue, or a "women's" issue [despite being] intimately connected to economic, racial, and social justice . . .
Republicans, meanwhile, have taken advantage of this vacuum. Since the 1980s and especially since 2010, conservative politicians have made restricting abortion an explicit priority, and while Democrats have generally voiced support for reproductive freedom, they've rarely been as committed to upholding abortion rights as Republicans have been to dismantling them. That's likely one of the reasons Republicans have been so successful in rolling back access to the procedure across large swaths of the country. . . .
The draft opinion is also momentous because it exposes how wrong it always was to consider abortion some kind of niche concern. A wholesale overturning of Roe as outlined in the Alito opinion won't just allow states to ban abortion within their borders; it will also open the door for state officials to pursue legal action against abortion providers in other states, something some have already pledged to do. This situation — states pitted against each other over a major civil rights issue — has frightening parallels in American history.
It happened under slavery, when fugitive slave laws allowed authorities to return escaped enslaved people to their enslavers, even if they were on free soil. It happened, too, under Jim Crow, when Southern states enforced segregation in schools and throughout public life, sometimes in violation of federal law. . . .
Anyone who still thinks of abortion as a side issue is about to be proved very wrong. . . .
The marginalization of abortion in Democratic politics is at least as old as Roe v. Wade [1973]. . . . In 1976, Congress enacted the Hyde Amendment, which bars federal funding for most abortions, thus putting the procedure out of reach for many low-income Americans. In 1984, President Ronald Reagan put in place the Mexico City policy, also known as the "global gag rule," which bars organizations abroad that receive US foreign aid from performing or even discussing abortion. Later, in the 2000s, a steady march of state-level restrictions shut down clinics across the South and Midwest, making abortion access more and more difficult for people who couldn't afford to drive hundreds of miles or spend thousands of dollars on a plane ticket. . . .
Moreover, abortion was allowed to fall by the wayside in the Democratic Party. Beginning in the 1980s, Republicans began campaigning on an anti-abortion platform . . . Democratic politicians generally supported abortion rights, but did not always push back vociferously on restrictions. The Hyde Amendment, for example, became a political third rail that many liberal candidates avoided touching for fear of upsetting centrists — overturning it did not become part of the Democratic Party platform until 2016, a full 40 years after it was first enacted.
Even then, abortion was often framed as something outside the mainstream of American politics . . . even though the ability to decide when and how to become a parent has profound effects on birthing people's finances and the entire economy.
In 2017, for example, Sen. Bernie Sanders and some Democrats endorsed Heath Mello, a Democratic candidate for mayor of Omaha, despite his past support of anti-abortion bills. While Sanders himself supports abortion rights, he said such compromises might be necessary "if we're going to become a 50-state party." It was part of a larger debate . . . in which abortion was sometimes cast as an issue of "identity politics" that Democrats couldn't afford to focus on if they wanted to win working-class voters. . . .
This inattention has been mirrored in media, where abortion coverage was often siloed at so-called women's interest publications. Major media outlets rarely dedicated even a single reporter to the issues of reproductive rights and justice. . . .
Forty million women of reproductive age live in states that are likely to ban abortion when Roe is overturned. Those most impacted will be people who lack the money or other resources to travel to another state for the procedure — namely low-income Americans, especially Black people, Indigenous people, and other people of color. "Black and brown folks have been sounding the alarms for years and none of it was hyperbole," Rep. Ayanna Pressley (D-MA) said in a statement on the draft opinion. . . .
Within a matter of months, women in about half of the United States may be breaking the law if they decide to end a pregnancy. This will be, in large part, because Supreme Court Justice Samuel Alito is surprised that there is so little written about abortion in a four-thousand-word document crafted by fifty-five men in 1787. . . . There is nothing in that document about women at all. . . . There were no women among the delegates to the Constitutional Convention. There were no women among the hundreds of people who participated in ratifying conventions in the states. There were no women judges. There were no women legislators. At the time, women could neither hold office nor run for office, and, except in New Jersey, and then only fleetingly, women could not vote. Legally, most women did not exist as persons.Because these facts appear to surprise Alito, abortion is likely to become a crime in at least twenty states this spring. "The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision," Alito wrote, in a leaked draft of the Supreme Court's majority opinion in Dobbs v. Jackson Women's Health Organization. . . .Alito's opinion rests almost exclusively on a bizarre and impoverished historical analysis. "The Constitution makes no express reference to a right to obtain an abortion, and therefore those who claim that it protects such a right must show that the right is somehow implicit in the constitutional text," he argues, making this observation repeatedly. Roe, he writes, was "remarkably loose in its treatment of the constitutional text" and suffers from one error above all: "it held that the abortion right, which is not mentioned in the Constitution, is part of a right to privacy, which is also not mentioned."Women are indeed missing from the Constitution. That's a problem to remedy, not a precedent to honor. . . .If a right isn't mentioned explicitly in the Constitution, Alito argues, following a mode of reasoning known as the history test, then it can only become a right if it can be shown to be "deeply rooted in this Nation's history and tradition." As I have argued, the history test disadvantages people who were not enfranchised at the time the Constitution was written, or who have been poorly enfranchised since then. Especially important is the question of who was enfranchised at the time of the ratification of the Fourteenth Amendment, in 1868, the nation's second founding, since many arguments defending abortion rights (and many other rights, too) turn on the equal-protection and due-process clauses of that amendment. Here, too, Alito is baffled to discover so little about abortion and women. . . .At the close of the opinion, Alito congratulates both himself and the Court that, with this ruling, they are enfranchising women. "Our decision . . . allows women on both sides of the abortion issue to seek to affect the legislative process by influencing public opinion, lobbying legislators, voting, and running for office," he writes. "Women are not without electoral or political power." . . .
What Did Cotton Mather Think?
Heather Digby Parton, Hullabaloo, May 4, 2022
Here's a short thread on Alito's use of 17th century belief systems to back up his opinion that historical oppression of women is the precedent we must respect:1/ Can we talk about how problematic Alito's logic is? Alito reaches back to the 17th c. English Common law to provide a precedent for his decision, but the 17th c. judgments he cites only made abortion a crime if it happened after the child "quickens" or moves (about 20 weeks).2/ This 17th-18th century understanding would mean upholding Roe, and disallowing Dobbs. So Alito then says the common law somehow must have made abortion illegal before quickening — without a shred of evidence.3/ Why was quickening so important? Many scholars & theologians then thought that quickening marked the possible point that the soul entered into the body of the fetus.4/ @CorneliaDayton writes a bit about it in her famous article on abortion in early America, "Taking the Trade." (Popular version here) https://history.uconn.edu/taking-the-trade5/ So by claiming that he wants to return us to our 17th c. common law roots, then actually ignoring their guidelines, Alito is imposing his own standard of what constitutes life (or perhaps a conservative Catholic standard) that is not in fact any past precedent in US history.6/ It was not even a past precedent in the Catholic Church in the 18th c., which also held to the quickening rule. Such logic falls apart upon the barest scrutiny. It is the definition of reactionary.7/ *technical clarification. Quickening is the point, then as now, when a mother can begin to feel a fetus move. The term is still common in medical literature & in doctor/patient conversations.8/ Relevant cases quoted and cited esp. pp. 16-20. Alito tries valiantly, but he just can't square the circle.Originally tweeted by Holly Brewer (May 4, 2022). . . .[Alito] and his cohort are happy to selectively acknowledge progress that benefits them. But when it doesn't they just harken back to the days of white wigs and tri-corn hats to justify their ideas. And if it is necessary, they will go all the way back to the 1600s – and mischaracterize it! – to justify their antiquated ideology.Why are we at the mercy of such people?Update: More on this theme:1/ In Justice Alito's draft opinion reversing Roe, he writes about "an unbroken tradition of prohibiting abortion on pain of criminal punishment," up until Roe in 1973. He cites, as historical authority, Sir Matthew Hale. Let me tell you about Hale & his views toward women. THREAD2/ The Alito draft says Hale "described abortion of a quick child who died in the womb as a 'great crime' and a 'great misprision.'"3/ Hale became Lord Chief Justice of England in 1671. In his views of women, he was not a forward-thinking fellow — *even* by the abysmally low standards of his era.4/ To Hale, English gentlewomen were "the ruin of families." Young women were a particular source of despair. They "learn to be bold," he complained, and "talk loud."5/ I researched Hale while writing, with @txtianmiller, the book "Unbelievable." The book was an extension of a story we wrote for @propublica and @MarshallProj called "An Unbelievable Story of Rape".6/ Hale believed that for women, it was easy to accuse a man of rape. He believed that for men, such accusations were hard to defend, even if innocent. He advised that jurors be warned — explicitly, and at length — about the threat of the false accuser.7/ He came up with quite the list of factors for jurors to weigh. Jurors, he wrote, should consider: Is the woman claiming rape of "good fame" — or "evil fame?" Did she cry out? Try to flee? Make immediate complaint afterward? Does she stand supported by others?8/ Hale's words became a standard feature of criminal trials in the U.S. As long as 300 years after Hale's death in 1676, many an American jury would be cautioned with what courts called the "Hale Warning": an instruction to be especially wary of false accusations of rape.9/ But that wasn't Hale's only legacy. In 1662, at Bury St. Edmunds, Hale presided at the trial of two women accused of witchcraft. Hale instructed the jury that witches were real, saying Scripture affirmed as much.10/ The jury convicted Amy Denny and Rose Cullender, after which Hale sentenced both women to hang. Thirty years later, Hale's handling of this trial, preserved in written record, served as model in Salem, Massachusetts, in the infamous witch trials of 1692.11/ Hale is known for his legal treatises. But just as revealing is a letter he wrote to his granddaughters, dispensing individually tailored advice. . . . This letter was 182 pages long. When it came to advice, Sir Matthew Hale was full of it. . . .17/ The letter reveals a man about as cheerful as his portrait suggests. Wrote Hale: "The whole constitution of the people of this kingdom is corrupted into debauchery, drunkenness, gluttony, whoring, gaming, profuseness, and the most foolish, sottish prodigality imaginable."Originally tweeted by Ken Armstrong (May 4, 2022).
Alito's Plan To Repeal The 20th Century
Adam Serwer, The Atlantic, May 3, 2002
If you are an American with a young daughter, she will grow up in a world without the right to choose when and where she gives birth, and in which nothing restrains a state from declaring her womb its property, with all the invasive authorities that implies.Seth Abramson, Proof, May 4, 2002 (Thoughts on the Opinion Leaker)
That is the significance of the draft Supreme Court opinion leaked to Politico, which shows that the right-wing majority on the Court intends to discard Roe v. Wade and Planned Parenthood v. Casey . . . The draft likely reflects the direction of the final decision, even if the scope of that decision changes.
Either John Roberts is in the majority on the MS abortion case and passed over Clarence Thomas to assign the opinion to Alito, or Thomas is the senior Justice in the majority and chose not to assign the opinion to himself.
Either way, there's a story here media must investigate.
My two preliminary thoughts:
(1) Thomas understands there's heat on him and his wife over January 6, and moreover is in a position to know if that heat is *justified*. That in this context he passed up the chance to write the most important opinion of his life is *very* telling.
(2) There's reasoned speculation from a Yale prof who was a former SCOTUS clerk—see link in my feed—that this opinion was leaked by a conservative clerk (with Thomas's clerks the top suspects) to strongarm either Kavanaugh or Gorsuch into joining an opinion they were wavering on.
Remember that "Thomas Clerk World"—the private listserv for Thomas clerks past and present *and* insurrectionist Ginni Thomas—has been under scrutiny over January 6. These are the most radical clerks in America. *If* there was a far-right leak, they would be the leading suspects. . . .
So in this context, Clarence Thomas inexplicably excusing himself from the scrutiny writing the MS abortion case opinion would've drawn on him and his wife—when he had the authority to assign the opinion to himself and normally would have—*is* a suspicious fact for investigators. . . .
But my understanding is that if Roberts isn't going to join the majority opinion himself, he *doesn't* pick who gets to write it, in which case Thomas had that authority and elected *not* to take for himself what would've been the most historic piece of writing of his whole life.
This is my way of saying the *strangest* decision made by a judge in this affair appears to have been made by Thomas, even as the chief suspects for a far-right leak of Alito's opinion would be Thomas's clerks and Thomas's wife. I think it's a thread investigators should pull on.
Even in an "innocuous" scenario—Roberts passing over Thomas to give the opinion to Alito—it'd be a stunning concession by Roberts that Thomas is tainted by scandal. You can't tell me Thomas wouldn't have wanted to write this opinion (Roberts couldn't; he wasn't going to join it).
In that "innocuous" scenario, Thomas's clerks—and wife—would've been livid over the slight, and even more furious at the loss of *control* it signified. If Kavanaugh or Gorsuch were wavering on joining Alito's opinion, a leak would be a way for Thomas's camp to reassert control.
It's reasonable for media to write on this, as a) a federal probe is ongoing; b) the leak was to conservatives' advantage; c) Roberts is not a suspect; d) Thomas and his wife/clerks were *already* facing a scandal over whether they respect US electoral/jurisprudential traditions.
Consider: on February 23, around the time the Alito opinion was written, the NYT came out with a *damning* piece on Clarence and his wife. The Court would've been aware this piece was being written *many* weeks earlier, likely November or December of 2021.
The Long Crusade of Clarence and Ginni Thomas
The Supreme Court justice and his wife battled for years for a more conservative America. New reporting shows how far she was willing to go after Donald Trump's 2020 election loss.
For that matter, the first PROOF article on Ginni Thomas's insidious role in January 6, 2021—which went viral and was read by many in the federal government (as I know because I know who follows the PROOF project)—was published in late January of 2022.
NEW: The Coming Collapse of Donald Trump's January 6 Conspiracy, Part 5: Ginni Thomas
This shocking new PROOF series details mounting evidence that Trump's seditious January 6 conspiracy is at the point of collapse because of the cowardice, fear, and perfidy of his co-conspirators.
But the *first* shot over the bow of Clarence Thomas and his wife came a week earlier, on January 21, 2022, which means the Court *definitely* would've known it was being written back in November or December 2021, when the MS abortion opinion was assigned.
Is Ginni Thomas a Threat to the Supreme Court?
Behind closed doors, Justice Clarence Thomas's wife is working with many groups directly involved in controversial cases before the Court.
In fact there's ample evidence Ginni was on Thomas Clerk World notifying Thomas clerks past and present that—as she saw it—a "hit piece" was coming back in late 2021. It's at this moment her husband apparently declined to write the most important opinion of his professional life. . . .
I've done enough research on Ginni Thomas—and read enough major-media investigation of Ginni Thomas—to know that she would've been absolutely *livid* at the idea that media attention on *her* caused her husband to miss out on writing an opinion she's dreamed of for *decades*.
So now we have a historic leak of the opinion Thomas was passed over for writing—or was forced to excuse himself from writing, *against his will*—that appears to benefit the far right and almost certainly would have had to come from a cadre of clerks. So who are the key suspects? . . .
Another fact worth considering: how quickly the far right used this leak—which secretly may have been a far-right leak—to say, almost with *one voice*, that *this* was the "real insurrection. "How bizarre to think this story should take the heat off the January 6 insurrectionists! . . .
[I]f federal investigators get even the slightest indication that there was an orchestrated political motive behind the leak *besides* a lone-wolf actor attempting to be a federal whistleblower, I candidly can't imagine going *anywhere else first* but to Clarence Thomas's camp. . . .PS/ To those speculating Thomas wanted to avoid writing this opinion because of its implications for Loving v. Virginia: those implications exist *whether or not* Thomas writes or just signs the opinion; writing it would've given him *greater* control over its downstream effects.
PS2/ A reader notes—cannily—that perhaps Thomas is not writing the majority opinion because he wants to write a concurring one (which is indeed his style). Yet it's hard to imagine his views diverging from Alito's, and he'd certainly try to write the majority opinion if he could. . . .
PS4/ I'll reiterate what I said throughout this thread: this is all speculation. But it's speculation urging the media to do a thorough investigation and aiming to circumscribe where the federal probe might seek to begin searching. At the start of an investigation, all is theory.
What we've seen over the last day or so is a tried-and-true example of [the right-wing's] sore-winners complex.It is absolutely no secret that ending Roe has been the right's political project for decades. . . . The leaked opinion is that plan coming to fruition—the success of a long game of often-shameless political maneuvering. Republican reaction to the leak was, of course, faux outrage. [Posted tweets from Mitch McConnell and Megyn Kelly] . . .As Tuesday rolled on, the right's fury against the leak intensified. It was compared to "an act of terrorism" [Posted tweets from Harmeet K. Dhillon and The Federalist] . . .Such comparisons are galling and patently false. But the focus on the leak over the substance is telling.First, it is an act of deflection geared toward minimizing the sweeping and radical nature of this ruling. . . .It is in the best interest of the right to obfuscate and downplay the monumental implications of such a ruling . . . And the best way to do that is by ginning up a political scandal. . . . When GOP pundits and politicians and activists begin tweeting and obsessing over the leak on cable news, mainstream news organizations begin to justify coverage of the leak as newsworthy (despite the fact that newsworthiness is a choice masquerading as an inevitability). . . . [The] leak then becomes a crucial part of the main story, and it ultimately dilutes coverage of the legal implications of the opinion. . . .Second, the sore-winners tactic is also an example of the sheer relentlessness of the far-right's culture warring. Political wins are celebrated internally, but externally each victory is treated as an opportunity to double down on a victimization narrative and politics of grievance.I watched this tactic play out frequently during my reporting on the pro-Trump media after Donald Trump's election. From the very first moments of his presidency, the Trump administration positioned itself as under constant threat. The White House's first press conference featured little gloating or celebration. . . . Their ascension in the White House press corps was not a victory, but an opportunity to highlight their own persecution.Even more common was Trump's own sense of grievance, despite holding the highest elected office in the country. In 2017, he noted that "no politician in history—and I say this with great surety—has been treated worse or more unfairly." He'd echo that statement in some form ad nauseam. Rarely was President Trump more aggrieved than after a political victory. In 2018, after his Supreme Court pick Brett Kavanaugh was confirmed, Trump blamed Democrats for bringing up the sexual-assault allegations against Kavanaugh . . . Kavanaugh's confirmation became a deeply consequential political win as well as fodder for the long-standing claim that Democrats are a dangerous, libelous threat to upstanding conservatives.In this way, a massive, painstakingly architected legal win then becomes a sign that august American institutions are poisoned by partisan treachery. Victory for conservatives (the opinion itself) is recast as a symbol (the leak) of cultural rot and the persecution of conservatives. . . .We may have won, this paradigm suggests, but the way we won means we are at greater risk of losing. This is key to an apocalyptic view of politics that demands constant outrage and voter grievance. It is an all-gas-no-brakes style of culture warring. Beyond the tweets and headlines, there's little logic to these arguments, but what matters is that the idea of the persecution energizes the base. . . .Fox viewers don't seem to react strongly to segments where anchors bring on left-leaning guests in order to "destroy" them. "Winning" appears to be less engaging than the threat of danger lurking behind every corner. . . . [A]s the New York Times' Jane Coaston put it . . . "'We won everything we ever wanted' doesn't really sell."The sore-winner complex highlights a fundamental asymmetry between the style of culture warring employed by the left and right. The right's vision is ahistorical and logically confused, but more importantly, it is relentless. There is no appeasing this type of politics. It is a politics that will manage to use its victories to stoke additional fears inside its voters. For the media, there is no amount of evenhanded or both-sides coverage that will get the right to back down from calling the press illegitimate, biased, and corrupt. . . . For the right, even in victory, there is only grievance and fear.
Louisiana Republicans Advance Bill That Would Charge Abortion As Homicide
Caroline Kitchener, Washington Post, May 5, 2022
Republicans in the Louisiana House advanced a bill Wednesday that would classify abortion as homicide and allow prosecutors to criminally charge patients, with supporters citing a draft opinion leaked this week showing the Supreme Court ready to overturn Roe v. Wade.
The legislation, which passed through a committee on a 7-to-2 vote, goes one step further than other antiabortion bans that have gained momentum in recent years, which focus on punishing abortion providers and others who help facilitate the procedure. Experts say the bill could also restrict in vitro fertilization and emergency contraception because it would grant constitutional rights to a person "from the moment of fertilization." . . .
If the Louisiana bill passes the Republican-led House and Senate, it would head to Democratic Gov. John Bel Edwards, who has supported antiabortion legislation in the past. . . .
"I just want to sort of level-set here first: This is a homicide statute," said Ellie Schilling, a New Orleans-based attorney who represents abortion rights groups. "What this bill does is to specifically amend the crime of homicide and the crime of criminal battery to enable the state to charge people, including the pregnant mother, at any stage of fertilization."
Ben Franklin Put An Abortion Recipe In His Math Textbook
Molly Farrell, Slate, May 5, 2022
The year was 1748, the place was Philadelphia, and the book was The Instructor, a popular British manual for everything from arithmetic to letter-writing to caring for horses' hooves. Benjamin Franklin had set himself to adapting it for the American colonies. . . . Franklin made all sorts of changes throughout the book, from place names to inserting colonial histories [as well as including John Tennent's 1725 pamphlet The Poor Planter's Physician], which featured a how-to on at-home abortion . . .In this week's leaked draft of a Supreme Court opinion overturning Roe v. Wade, Justice Samuel Alito wrote, "The inescapable conclusion is that a right to abortion is not deeply rooted in the Nation's history and traditions." Yet abortion was so "deeply rooted" in colonial America that one of our nation's most influential architects went out of his way to insert it into the most widely and enduringly read and reprinted math textbook of the colonial Americas—and he received so little pushback or outcry for the inclusion that historians have barely noticed it is there. Abortion was simply a part of life, as much as reading, writing, and arithmetic. . . .Franklin's choice to get Tennent's pamphlet into the hands of readers all over the colonies meant that anyone learning to read, write, and calculate with his book would also have access to the leading available treatment for ending a pregnancy. Tennent's handbook prescribes angelica, an herb known to be an effective abortifacient in the early stages of pregnancy for thousands of years, and which was frequently recommended across early modern herbal books. Moreover, the recipe refers to several herbal abortifacients known at the time: . . .Franklin had a track record of promoting female education, and of arithmetic for them in particular. He advocates for it in his early, anonymous "Silence Dogood" articles, and in his Autobiography singles out a Dutch printer's widow who saved the family business thanks to her education. There, Franklin makes an explicit call "recommending that branch of education for our young females." . . .I thought of Franklin's book multiple times while I read the news this past week. Florida legislators want to excise social and emotional learning exercises from math textbooks for children, as though presenting arithmetic without context has ever been helpful or even the norm. . . .[A]bortion access is an essential part of STEM education. It keeps us in school; it keeps the kids we already have fed and housed while they're in school. And it is simply health care—like treatment for the umpteen other maladies listed in the colonial medical handbook. . . . [F]or the Framers' contemporaries who learned to count with Franklin's help, safe and accessible abortion was a matter of simple math.
Thanks for doing my job. :) I'm mostly too angry to write anything, although I did manage to pull something together yesterday.
ReplyDeleteThat "if it was about babies" meme going around Facebook is MAKING ME SICK. Are people STILL saying that??!! Are people still unconvinced???