Mr. Alito Finds Neither Rhyme nor Reason

One sign of Mr. Alito’s draft opinion’s contriving to reach his desired result is that it jumps past the issue presented: can the Mississippi law bar pregnancy terminations after 15 weeks in gestation? When I was in law school, that which extends beyond the issues in the case was called obiter dicta, which is fancy words for: total nonsense.

The Mississippi statute even provides exceptions past 15 weeks for “medical emergency and in cases of severe fetal abnormality.” Fifteen weeks allows for ~96% of pregnancy terminations conducted in 2019 (https://www.cdc.gov/mmwr/volumes/70/ss/ss7009a1.htm, at Table 10). Add the exceptions, the statute allows still more terminations. The well-established rule in American law is that the Court only has the right to exercise its tremendous power when acting on the controversy in front of it. The case in front of the Court does not present issues that call for negating Roe.

Here, I will highlight notable tricks where the opinion reaches beyond the Mississippi law. I address only a sliver of the issues raised by the draft opinion, but important issues for measuring the credibility of the opinion.

My narrow field of law has a history that sheds light on Mr. Alito’s “originalist” analysis. There, until 2005, a reviewing court used a corrupt method of interpretation that allowed the judge could pick and choose a so-called “objective” definition. The method was discarded when the results grew increasingly silly. I think embarrassment had a lot to do with the court discarding the method.

Section B2 of the draft opinion has similar problems, where a self-serving definition distorts history. That section purports to evidence that terminating a pregnancy before “quickening” (occurring at about 16 to 18 weeks of gestation) was condemned in English Common Law, even if not punished as severely as after quickening.

One occurrence is found at page 18, when Mr. Alito turns to 17th and 18th century texts that summarize Common Law. As Mr. Alito describes these texts, they refer to the wrongful death of a child in utero, without reference to quickening. And thus he says that pre-quickening termination was illegal. But the cited language is more likely refers to termination after quickening – since in the 18th century, by Alito’s later admission, texts indicate that a “child” was deemed to exist only after quickening (see Section B2iii). (See also https://www.washingtonpost.com/history/2022/05/15/abortion-history-founders-alito.)

Thus, early in Section B2 he uses, without explanation, his own self-serving definition of “child,” even though later in Section B2 he acknowledges that in the 18th century a very different definition was prevalent.

He further cites two specific English cases, from 1732 and 1602. These two cases cannot be said to define the Common Law. The 1732 citation is readily available (https://babel.hathitrust.org/cgi/pt?id=mdp.39015016468301&view=1up&seq=1&skin=2021,at pp. 931-32), so we can test whether it supports Mr. Alito’s argument. The defendant was convicted of (a) an attempted murder of a Mr. Wilson’s wife and (b)terminating the pregnancy of a rape victim. The testimony on second charge refers to a “child,” which likely meant a post-quickening embryo. The testimony further indicates that the woman was at week 16 (see https://www.washingtonpost.com/history/2022/05/15/abortion-history-founders-alito),and thus the embryo would have been post quickening. Clearly the case does not support Alito’s assertion that terminating a pregnancy prior to quickening was illegal.

Mr. Alito’s evidence is more in keeping with a right in colonial times to terminate a pregnancy prior to quickening, which would be in sync with Benjamin Franklin publishing instructions for a medicine to terminate a pregnancy (https://slate.com/news-and-politics/2022/05/ben-franklin-american-instructor-textbook-abortion-recipe.htm). When Mr. Alito states that “until the latter part of the 20th century, such a right was entirely unknown in American law,” he is again being disingenuous.

Clearly, Mr. Alito has not made his case as to the state of the English Common Law when it was fused into the beginnings American law. As with originalist analysis in general, Alito sees what he wants to see, but not necessarily that which existed originally. His reasoning, and his methodology, should carry no weight, and should embarrass the rest of the Court.

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This is a Creative Commons article. The original version of this article appeared here.

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