“On Roe, Alito cites a judge who treated women as witches and property.” Thus reads the title of a recent op-ed in the Washington Post by Jill Elaine Hasday, a law professor at the University of Minnesota.
Her effort to discredit the leaked draft opinion in the Supreme Court’s Dobbs abortion case rests on the writings and career of seventeenth-century jurist Sir Matthew Hale. Hasday says Justice Alito relies on Hale because “he is desperate to establish that the early American legal system was opposed to abortion.” In her view, he has to cite this especially odious misogynist on this point because that is “the best Alito can do.”
This charge is misguided in so many ways that it is difficult to know where to begin. But it is worth scrutinizing carefully and refuting clearly so that we can turn our attention to the real question raised by the draft opinion, which is the legal history and status of abortion.
An Alleged Obsession with Hale
Start your day with Public DiscourseSign up and get our daily essays sent straight to your inbox.
First, Hasday’s attack grossly overstates the importance of Hale, as the Alito opinion does not cite him as the only source for any legal fact. In the British common-law system, which relied not on a written constitution but on past judicial precedents, Hale was one of a number of legal scholars whose digests of those precedents was used by fellow judges. Justice Alito cites a consensus of the major writers in this field—noting at one point, for example, that the same legal principle is found in “Bracton, Coke, Hale, Blackstone, and a wealth of authority.”
In fact, there is a very good reason why Alito has to cite Hale: Justice Harry Blackmun cited him in his majority opinion in Roe v. Wade, to argue that British and early American law generally permitted abortion.
That great defender of women’s reproductive rights Harry Blackmun had to resort to citing a witch-hunter and rape apologist for his arguments? Was he desperate to show that American legal history is pro-abortion? In any case, Alito had to cite Hale to respond to Blackmun’s historical claim and show why it is flawed.
Second, in claiming that it is Justice Alito whose interpretation is flawed, Hasday simply misrepresents him. His draft opinion notes that “Hale described abortion of a quick child who died in the womb as a ‘great crime.’” Hasday here accuses Justice Alito of “glossing over” the fact that this referred to a situation in which the woman is “quick” with child. Well, no, Alito says exactly that. And he elsewhere says forthrightly that under the common law “abortion was a crime at least after ‘quickening’—i.e., the first felt movement of the fetus in the womb, which usually occurs between the 16th and 18th week of pregnancy.”
Justice Alito says much more that Hasday ignores. He cites Hale and Blackstone and historical treatises by John Keown and Joseph Dellapenna, as well as specific court cases, to show that abortion was seen as unlawful even when “quickening” may not have occurred. And Hale, Blackstone, and many other authorities said that performing an abortion before “quickening” can be prosecuted as homicide if the woman dies. This was an early version of the legal concept of “felony murder”: if someone is already committing a crime, a death resulting from that illegal situation can be charged to the offender as murder. The paradigm example is that a shooting death during a bank robbery can result in a murder prosecution for the robber, even if that person did not fire the shot. Incidentally, this was also an interesting way to encourage prosecution of abortionists who endanger women.
By contrast, a patient’s accidental death resulting from a lawful medical procedure was not a homicide. An early abortion, then, was not seen as lawful medical practice, though it was a lesser offense than an abortion after “quickening.”
Third, Hasday claims that Justice Alito’s historical account is rebutted by an amicus brief filed in Dobbs by a group of historians. But footnote twenty-four of the Alito opinion cites that brief, as well as a brief by legal scholars that contradicts it. The first brief claims that “quick” with reference to the unborn child meant the mother’s subjective perception of the child’s movements; the second claims that it often simply meant “alive” and was believed to occur early in pregnancy.
Justice Alito goes on to say we need not choose between these accounts because, in the nineteenth century, they became irrelevant. Due to medical and scientific advances, in 1859 the American Medical Association began successfully urging American legislators to update their abortion laws by treating abortions at every stage as a crime. By the time state legislatures were ratifying the Fourteenth Amendment in 1868, twenty-eight of the thirty-seven states had taken this step, and the rest soon followed. So whatever else these legislatures meant by the Fourteenth Amendment’s references to “due process” (cited by Roe) or “liberty” (cited by Casey), those words could not have meant a legal license for abortion.
Hasday wants to suggest that the move toward stronger anti-abortion laws arose from a demeaning view of women. But during that same part of the nineteenth century, American law was moving to reject British common law’s tendency to wink at a husband’s physical abuse of his wife. And the AMA in 1871 explained why the “quickening” distinction was obsolete and should be deleted from American laws, quoting with approval the widely respected legal compendium Archbold’s Criminal Practice and Pleadings:
It was generally supposed that the foetus becomes animated at the period of quickening; but this idea is exploded. Physiology considers the foetus as much a living being immediately after conception as at any other time before delivery, and its future progress but as the development and increase of those constituent principles which it then received. It considers quickening as a mere adventitious event, and looks upon life as entirely consistent with the most profound foetal repose and consequent inaction. Long before quickening takes place, motion, the pulsation of the heart, and other signs of vitality, have been distinctly perceived, and, according to approved authority, the foetus enjoys life long before the sensation of quickening is felt by the mother. Indeed, no other doctrine appears to be consonant with reason or physiology but that which admits the embryo to possess vitality from the very moment of conception.
Twentieth century findings in embryology have only confirmed and elaborated that statement.
While I have no interest in defending Sir Matthew Hale’s very flawed views of women, marriage, or witches, it is far from clear that he originated those views or was unusual in holding them. His treatises were intended not as creative works of legal philosophy, but as compendia of principles abstracted from the range of past British judicial rulings.
Hasday criticizes the Alito opinion for describing Hale as an “eminent” authority in this regard. But Justice Alito was only quoting a six-to-three opinion in the US Supreme Court case of Kahler v. Kansas (2020), about the need to consult the “eminent common-law authorities (Blackstone, Coke, Hale, and the like)” on issues of criminal law like the insanity defense. That majority opinion was written by Justice Elena Kagan, not widely seen as a misogynist.
Apparently, as a judge Matthew Hale did convict two women of practicing witchcraft. Especially in the period from 1560 to 1630, before Hale was accepted to the Bar, witchcraft trials had already led to the execution of thousands of people throughout Europe; in Salem, Massachusetts, they led to the execution of 20 people (14 women and 6 men) in 1692 and 1693. In this regard, tragically, Hale was a man of his time. But the charge that he generally saw women as witches seems overblown.
The Checkered History of Marital Rape
Hasday further claims that Hale was uniquely influential in promoting the legitimacy of rape within marriage—not in inventing the idea, but in formulating the argument that the wife is the “property” of her husband. She quotes Hale as saying: “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.”
Hasday offers no evidence that Hale was the originator even of this rationale, as opposed to a chronicler of British legal doctrine. One might even question whether the argument here is that a wife is simply her husband’s “property,” as it seems more to rest on contract law: in the marriage contract, both parties have consented to being available to each other for sexual relations (that is what “in this kind” refers to) for life. Hale is not likely to have held that “property” can make valid contracts or be bound by them. Nonetheless, it’s true that the argument is demeaning and was later rightly rejected in British and American law.
In the United States it was first rejected in 1976, by the legislature of Nebraska—a state expected to pass anti-abortion laws if Roe is reversed. The exemption for the husband was not rejected by all the states until 1993—and some states, like the pro-abortion state of California, still treated marital rape differently from other rape. In the meantime, some state courts rejected the exemption as unconstitutional—beginning with New York in 1984, and the strongly anti-abortion state Alabama in 1986. With this legal history in mind, it is clear that the attempt to link opposition to abortion with support for marital rape is flawed.
Overall, Hasday’s charge that the Alito draft opinion is based on faulty history or an obsolete and demeaning view of women’s rights does not withstand careful scrutiny. This and other misguided efforts to demonize critics of Roe deserve to be analyzed and refuted so that—ideally—those attempting them will ultimately stop changing the subject and begin discussing the ugly realities of abortion.