When I was a young lad in 1965, rock music was graced by the song stylings of Sam The Sham and the Pharaohs. They had two “hits,” Wooly Bully and Little Red Riding Hood, before they faded into obscurity in 1967. In a way, they were a novelty group, similar to Freddie and The Dreamers, often annoying but basically harmless.
At the time I wondered why Sam was a Sham. A “sham” is defined in the Merriam-Webster Dictionary as “a trick that deludes” and “cheap falseness.” As I considered Sam’s use of the word Sham, the more I thought that what he lacked in musical talent, he more than made up for in honesty. But then everyone’s a critic at one time or another.
Fifty-seven years after Sam the Sham’s first big hit, a more serious sham occurred. You may know that a couple of weeks ago, a draft Opinion regarding Dobbs v. Jackson Women’s Health Organization was leaked out of the United States Supreme Court. If it is the final Opinion it would overturn Roe v. Wade. Maybe you read it, no doubt you've read or heard of it.
It was authored by Justice Samuel Alito. The new Sam the Sham. Only this isn’t a novelty act, this is as serious as it gets. Not only would this strip away millions of women’s reproductive freedoms and agency over their bodies, but it would set the stage for an assault on a variety of liberty interests that all too many of us take for granted.
Before commenting on the Alito draft, it’s important to understand what it is, and what it isn’t. This is a first draft, not the final Opinion. Normally drafts circulate among the Justices for review and suggested revisions. In some ways it’s like making sausage.
It has been reported that the proposed judgment, the reversal of Roe, has five Justices (Alito, Thomas, Gorsuch, Kavanaugh, and Coney Barrett) signed on. If this majority holds, Roe is is gone.
It has also been reported that since the draft was circulated no revised drafts nor competing drafts have been circulated. If true, this is troubling given that a judgment in Dobbs is thought to be rendered in June. I want to remain optimistic that a less onerous result will be reached but I’m not.
I have to assume that there will be some revision to this draft because as it is, it’s a hot mess. This draft is a hodgepodge of dissembling, logical inconsistencies, cherry-picked cases, dodgy sources and references, questionable history, and as a result is an unvarnished screed.
Key to this opinion are two things: history in which abortion was criminal and forbidden, and the undercutting of Roe by declaring that no right to abortion had ever existed. In this post I'd like to address the historical basis for this opinion.
Alito (or more probably his law clerks) dress this history up with olde English legal treatise authors. First, he reaches back to the 1200s and cites Henry de Bracton, an English cleric and jurist. Let's ignore for the moment issues of relevancy a Thirteenth Century treatise has on modern law and review what the Court cites:
"Henry de Bracton's 13th-century treatise explained that if a person has “struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated, and particularly if it be animated, he commits homicide.” H. Bracton, De Legibus et Consuctudinibus Angliae ("On the Laws and Customs of England”) 279 (T. Twiss ed. 1879);..." [Parentheses after Bracton's thesis title mine.] Draft Opinion, at 16.
So here is the introduction of the word "quickening" that the Court wants the reader and public to concentrate on. Simply put, quickening is a description of when the mother feels the fetus begin to move in the womb. This usually occurs in the 16th to 18th weeks of pregnancy.
But read the language closely. It states that if someone were to strike a pregnant woman, or give the woman a poison which caused an abortion, he commits a homicide, not the pregnant woman. Here Bracton separates "abortion" from "homicide." Presumably, if the fetus is a quick "child" or is born a life in being, then who ever caused the death of the fetus/baby has committed a homicide. But what if the "abortion" occurs prior to "quickening?"
[NOTE: without getting too far into the weeds, Bracton was the second legal treatise writer in English history. He focused heavily on Roman influences in the English common law as well as canon law. Most English legal historians indicate that Bracton's work fell out of favor within a few decades as Norman legal theories influenced Anglo-Saxon common law.]
The Court then goes on to cite Sir Edward Coke, a jurist and legal treatise writer in the 17th Century. Dovetailing on Bracton, it cites Coke as follows:
"Sir Edward Coke's 17th Century 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.” 3 Institutes of the Laws of England 50- 51 (1644). (“Misprision” referred to “some heynous offence under the degree of felony.” Id, at 139) Two treatises by Sir Matthew Hale likewise described abortion of a quick child who died in the womb as a “great crime” and a “great misprision.” Draft at 17.
As it happens, I have all four of Coke's Institutes in my personal library, so I consulted the third Part of Coke's work and here's what he actually wrote:
"If a woman be quick with childe, and by a potion or otherwise kills it in her wombe; or if a man beat her, whereby the childe dieth in her body, and she is delivered of a dead childe, this would be a great misprison, but no murder: if the childe be born alive, and dieth of the potion, battery, or other cause, this is murder: for in law it is accounted a reasonable creature, in rerum natura when it is born alive."
A few things to unpack here. First, Alito (or his clerks) cherrypicked their quotes to eliminate the context in which they appear. For instance, the Court only concentrates on the child being born alive and then it's murder. In this case, the Court slyly equates abortion with infanticide. But if the quicken child is killed prior to its birth, then it's a "great misprison" but "no murder." And what happens prior to quickening? Presumably the mother knows she's pregnant before quickening, so what happens if she aborts the pregnancy prior to quickening? Is that, too, a great misprison?
Here's the legal shell game I indicated previously. The above passages relate solely to Murder. The following chapter in the Third Part of the Institutes addresses various homicides and manslaughter. After reading that section twice and paying attention to the various examples of homicides (suicide is a crime here) and manslaughter, there is no mention, to quote a passage in the Court's draft "None. Zero." of anything to do with the killing of a fetus. But they trot out the word "misprison" from an unrelated portion of Coke's Institutes and try to bootstrap it to the notion of abortion.
And let's talk about this strange, ancient word "misprison." Simply stated, it means concealment of a criminal or treasonous act. The Court wants the reader to focus on "some heynous offence under the degree of felony" and then references page 139. So I consult my Part Three of the Institutes and see:
"Misprison is twofold: one is erimen omissionis, or omission, as in concealment or not discovery of treason or felony: another is crimen commissionis, or commission, as in committing some heynous offence under the degree of felony." P. 139.
The portion of the above passage that the Court employs is the commission part of the definition. But if we're to apply it to the woman who aborts her quickened fetus, then what's the felony? It's not murder, that we do know. Only if the child who was poisoned or otherwise harmed in utero and is born but then dies, is it then murder. But before then? Coke doesn't say, and he wasn't shy in detailing what he thought. Moreover, if the fetus is aborted prior to quickening, then what?
I can’t help but think that the Court is attempting to equate the ancient word “quickening” with the more modern concept of “viability” as they apply to a fetus. As we’ve seen, quickening relates to the fetus’s first movement felt by the mother. But at 16 weeks we know that except for exceptional cases, a fetus would not survive outside of the mother without extraordinary interventions and even more luck. Viability describes the child born being able to, with or without assistance, live outside of the mother. They aren’t close to the same but the Court with its out of context use of language tries to imply that if not synonymous, they’re roughly equivalent conditions.
A brief word about Matthew Hale. Coke doesn't cite him, the Court does. As has been widely reported, Hale was an English jurist of some renown who presided over a witch trial, sentencing two women to be hanged. He also developed the doctrine, which lasted for centuries, that a husband cannot rape his wife. The Court seems to think Hale is a credible source on the issue at bar, I don't.
Finally, the Court cites William Blackstone to support its historical assertions. As quoted:
"And writing near the time of the adoption of our Constitution, Blackstone explained that abortion of a “quick” child was “by the ancient law homicide or manslaughter” (citing Bracton), and at least “a very heinous misdemeanor” (citing Coke)." 1 Blackstone, Commentaries on the Laws of England *129— *130 (7th ed. 1775) (Blackstone)."
Now this is the Court's coup de grace on this historical analysis. I don't want to nerd out but I also have a complete set of Blackstone's Commentaries. That said, I won't write Blackstone's actual text, I'll just write what the Court omitted. On page 126 of my edition, right after "the ancient law" cited by the Court is written this:
"But at present it is not looked upon in quite so atrocious light, though it remains a very heinous misdemeanor."
In context, Blackstone is acknowledging the ancient law but also states that by the 1760s when the first Book of the Commentaries was published, and near the time of the adoption of our Constitution, abortion was no longer viewed as a homicide or manslaughter, but as a "heinous misdemeanor." Yet we don't know what that misdemeanor actually is. It wasn't until the early 1800s that abortion was made a crime in Britain, decades after Blackstone wrote his treatise.
There are numerous slight of hand issues in this draft, but the use of Joseph Dellapenna is perhaps the most egregious. In 2006, his book Dispelling the Myths of Abortion History he argues that abortion was always treated as a criminal offense, rebutting Blackman in Roe who wrote about the historical acceptability of abortion. Mr. Dellapenna had no legal expertise relative to abortion issues. Rather he's a well respected and experienced (he has a 30+ page CV on-line!) land use attorney concentrating on water rights. No matter, his book - now out of print, you can't even get it on Amazon - made it into a Supreme Court draft Opinion.
Professor Carla Spivak, whose 2007 article that appeared in the William And Mary Journal of Women and The Law, rebutted Dellapenna. She asserts that it wasn't a crime to abort a fetus prior to quickening (as the plain reading of Coke would confirm) and was treated as at worst a misdemeanor after quickening. She asserts that when abortion was punished it was a way to crack down on illicit sex or punishing a man who injured a pregnant woman. A very different analysis than that of the Court's.
To conclude, this draft is dangerous not only because of its desired outcome, but in the way it uses sources to support that outcome. It distorts historical writings of those who shaped and continue to shape our law. And in cherry-picking passages out of their context, they try to convey a meaning that the plain reading of Coke's and Blackstone's treatises cannot support.
As Justice Ruth Bader Ginsburg might have said, "I dissent."
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