You may be asking yourself: "Sir Who?"
Good question.
In the draft, Justice Alito cites several interesting sources. Here, I will offer a brief description of three of the men he mentions in this section of the text, and explain their relevance to Roe v. Wade and abortion.
Sir Edward Coke
Sir Edward Coke became a prominent judge and politician at the end of the 16th Century.1 After serving as chief justice, Coke was eventually removed after acquiring a reputation for “manipulating” several medieval precedents in an attempt to support his own views on 17th Century common law.2 Alito cites Coke’s writings on abortion, which Coke classified as murder.
Sir Matthew Hale
Sir Matthew Hale was a 17th Century scholar on the history of English common law, and a significant English judge.3 In 1680, he wrote History of the Pleas of the Crown, a piece that served as one of the primary authorities on the common law of criminal offenses.4 For many centuries, he was remembered as a fair judge and juror. More recent scholars have pointed to his belief in witchcraft (and subsequent sentencing of two women to death by execution), and his consistent defense of marital rape, which he explicity articulated in his written work,5 as evidence for his newfound status as a misogynist. More specifically, in History of the Pleas of the Crown, Hale write that a husband cannot be guilty of rape of his wife because, “the wife hath given up herself in this kind unto her husband which she cannot retract.6” Alito cites Hale to argue that early-term abortions could be considered homicide.
Henry de Bracton
De Bracton was a 13th Century jurist and author of On the Laws and Customs of England, a seminal text on British common law.7 In the text, de Bracton explains that if an individual caused the termination of a pregnancy through abortion, they had committed homicide. This is the section that Alito cites, though the same text also plainly states that women are inferior to men.8
British Common Law and Abortion in the United States
Inclusion of each of these figures is done in an attempt to establish that there is a long history of laws against abortion. The logic here, of course, suggests that if an individual at any point did not have a particular right, they should at no point be able to obtain that right, due to historical precedent.
British common law in this section is brought into the argument because for a period, it established abortion as a crime after a particular stage of “quickening” in the pregnancy, at which a woman had first reported feeling movement within the womb. In 17th and early 18th Century America, various aspects of British common law influenced U.S. policies, and abortion was no exception.9 The relevance of each of these histories to abortion in the United States today is debatable and many have questioned Alito’s use of them, but if this Supreme Court decision stands, they will have served as part of the reasoning.
Endnotes
1. Encyclopædia Britannica, inc. (n.d.). Sir Edward Coke. Encyclopædia Britannica. From https://www.britannica.com/biography/Edward-Coke.
2. Ibid.
3. Encyclopædia Britannica, inc. (n.d.). Sir Matthew Hale. Encyclopædia Britannica. From https://www.britannica.com/biography/Matthew-Hale.
4. Ibid.
5. Pracher, M. (1981, January). The Marital Rape Exemption: A Violation of a Woman 's Right of Privacy. Golden Gate University Law Review.
6. Ibid.
7. Encyclopædia Britannica, inc. (n.d.). Henry de Bracton. Encyclopædia Britannica. From https://www.britannica.com/biography/Henry-de-Bracton
8. Milbank, D. (2022, May 10). Opinion | that 13th-century law treatise Alito uses? here's what else it says. The Washington Post. Retrieved May 10, 2022.
9. Shivaram, D. (2022, May 4). The movement against abortion rights is nearing its apex. but it began way before Roe. NPR. Retrieved May 10, 2022.