Wednesday, July 20, 2022

Commander Sam Alito, At Your Cervix

by Sherry F. Colb

It has been a little while since I last analyzed/ranted about some of the countless things wrong with the majority opinion in Dobbs v. Jackson Women's Health Organization. The hiatus has given me a welcome opportunity to discover some more things to hate about that wretched piece of writing. Aiding in the process were conversations with women during which I learned that women who oppose forced pregnancy and birth do not just feel disappointment, dejection, and the sense that their lives (our lives) count less than the "life" of a fertilized egg the size of the period at the end of this sentence. They feel hatred for Sam Alito (SA).

Why Do Women Hate SA?

Others have astutely noted that women and especially pregnant women are utterly disappeared in SA's Dobbs opinion. We learn more about Mississippi's (inaccurate/lying) account of when an embryo supposedly develops a heartbeat than we do about how painful, nauseating, and dangerous a pregnancy is to a woman (or trans man or nonbinary person). We have dicta effectively welcoming laws against the morning after pill but not a word about bans on terminating ectopic pregnancies or laws with no exception for the life or health of the mother. SA's opinion announces loudly and clearly that women simply do not matter. And why don't they (we) matter? Because centuries ago, men held almost master-like power over the women in their lives, a power that men used to inflict violence on their spouses, children, and enslaved persons. Yes, because men violently abused women with complete impunity in 1789 (and 1689!), they are thereby entitled to do so in 2022.

Sir Matthew Hale

SA manages to cite the work of notorious misogynist and jurist Sir Matthew Hale more than ten times in the course of what may be one of the three most disgraceful judicial opinions ever to issue forth from this "Supreme" Court and its Trump judges (because yes, Chief Justice Roberts, there are Trump judges, and they are rapidly destroying the public faith in this most dangerous branch). I know that someone must have told SA the most pertinent facts about his revolting little hero: Hale (a) spoke passionately in favor of the right of married men to rape their wives with impunity; (b) enthusiastically instructed jurors (and helped create a "history and tradition" of instructing jurors) in rape cases to be highly skeptical of women who charge rape because it is so very difficult for the accused rapist to defend against such charges, however innocent; and (c) sentenced two women to death for witchcraft. In other words Hale is famous for men raping their wives, for juries embracing rape myths and disbelieving women, and for killing women whose exercise of power he perceived as magical (which perhaps explains how he could believe that a fertilized egg is a baby, a bit of magical thinking if ever there was one).

Because multiple citations of this odious man cannot be an accident, particularly after the leak of SA's handiwork and the tsunami of critical commentary that it inspired, we can conclude that SA is trolling women. Citing Matthew Hale for the proposition that abortion (after quickening) is a "great misprision" is tantamount to citing Mel Gibson (who reportedly called Jewish actor Winona Ryder an "oven dodger") for the proposition that we have a tradition of denying Jews the right to own property and that the Constitution today thus protects no such right on the part of Jews. Citing a rape apologist like Hale in taking away the right against forcible pregnancy and birth, without even acknowledging the man's impressive violence-against-women credentials, is, in a word, gaslighting.

Yet there is more to it. Rape and forced pregnancy and birth are not just different ways of destroying women's lives, though they surely are that. They are, in a sense, the same way of destroying women's lives. In both cases, a man ignores a woman's wishes regarding her own body and uses her body for his own purposes. One might think that someone who considers abortion a "great crime," as Hale did, would also view marital rape that way. Certainly, if the reason for one's opposition to abortion had anything to do with compassion and opposition to violence, it would follow that one would hate marital rape--both because it too is violent and causes grave harm and because in the wake of a rape, opposition to abortion takes all bodily agency away from the woman. She has no say in what enters and what grows inside her body. She serves as her husband's ever-available blow-up doll, followed immediately by service as an involuntary breeder. And because most children in the so-very-relevant 17th century came from married couples, Hale supported the one-two punch of raping wives and then forcing them to create and then birth the rapist's child.

I doubt that any of this was lost on SA when he chose to leave most of his leaked opinion intact. And how do we know that SA truly meant to support misogyny? We know because despite the length of the screed that is the Dobbs opinion, SA managed to say nothing about whether women are entitled to terminate a pregnancy resulting from rape or incest. The logical inference is that just as Hale endorsed rape--especially marital rape in which the commander sexually assaults his handmaid--so does Alito. And if raping women is fine, then why wouldn't the raped woman have to take her pregnancy to term? A rape exception assumes that the woman's consent matters in sex and in pregnancy. Hale rejected the importance of consent in both. And apparently, so does his protege, SA. It is not especially shocking that a man from the 1600's viewed women as little more than their husbands' sexual and reproductive slaves. That someone who has this view serves on our High Court and managed to get four others to sign onto his profoundly offensive opinion is shocking indeed.

Before the leaked Dobbs opinion circulated, perhaps the handiwork of a Republican law clerk who wanted to deter the Trump judges from jumping ship--I would have thought it impossible for the content of the opinion to be even worse than the substantive outcome of overruling Roe v. Wade and Planned Parenthood v. Casey. I stand corrected, and I join hands with the millions of women in this country who imagine the world in which at least five additional women had emptied their uteruses while they still had the chance.