good evening everyone happy cinco de
mayo and no it is not mexico's
independence day it is a celebration of
the defeat of napoleon iii army but a
small but scrappy mexican force in the
19th century a fitting theme as ukraine
holds out against a larger and brutal
russian army in europe and as american
women do battle against
an english jurist from the 17th century
take a look at this guy his name is sir
matthew hale he was quite simply a
dumpster fire of awful he was against
abortion he had two women executed for
practicing witchcraft an opinion that
established a model for the salem witch
trials
he didn't believe in the concept of rape
warning that rape was an easy accusation
to make in fact the instruction to
jurors to be wary of false accusations
of rape is known as the hail warning
and he didn't have much use for charges
of marital rape either in his book
history of the pleas of the crown he
writes he wrote quote
the husband cannot be guilty of a rape
committed by himself upon his lawful
wife meaning that a wife was a man's
property and therefore he cannot commit
a crime upon her nor can she refuse her
consent
interestly or rather horrifically
justice samuel alito in the leaked
opinion draft that would overturn roe v
wade cites that exact book
in his argument to end abortion
while citing hale as an historical
authority not once not twice but nine
times in an approximately 98-page ruling
mathematically that's like almost once
every 10 pages
hale was one of the people alito relied
upon
for
his one of his most extreme assertions
that quote an unbroken tradition of
prohibiting abortion on pain of criminal
punishment persisted from the earliest
days of the common law until 1973.
an unbroken tradition from 17th century
english common law to the late 20th
century well that could apply to almost
anything contraception same sex marriage
interracial marriage civil rights
integration women's rights to vote
and while we have been talking about
this leak and its implications during
this terrible week in america i've got
to say
it's the contempt for me the utter
contempt that alito's road breaking
screed showed toward women
the bile dripping scorn that he showed
over the original decision that granted
women autonomy and privacy and ownership
of their bodies this hatred of women
and the idea that we are no more than
wards of our fathers and then of a
husband and then if not of the state
simply because we are female
that
is the unbroken tradition in this
country and make no mistake they're
coming for all of it this is the
conservative but really the extremist
assault that has been in the works for
decades this drive to repeal the 20th
century the century that in their minds
warped america by enshrining women's
rights and civil rights and starting the
drive toward gay rights and non-white
immigration they want it all to go away
and now they have a court that can make
it happen
alito might say that his reasoning was
not meant to apply to any other rights
besides abortion but listen to what he
said about roe v wade during his
confirmation hearing in 2006 and ask
yourself
if any thinking person should believe
him
roe versus wade is an important
president of the supreme court it was
decided in 1973
so it's been on the books for a long
time it has been challenged on a number
of occasions and i discussed those
yesterday and it is my and the supreme
court has reaffirmed the decision
sometimes on the merits sometimes in
casey based on starry decisis and i
think that when a decision is challenged
and it is reaffirmed that strengthens
its value ah yes the magic word starry
decisions you heard him calling roe v
wade an important precedent of the
supreme court and now drafting an
opinion rejecting what he wants to
acknowledge as an established president
this is not a justice nor a movement to
be trusted on their word
now let's talk about what this means in
the real world in louisiana there is a
new so-called fetal personhood bill that
could make having an abortion grounds to
be charged with homicide the bill
recognizes the human personhood of an
unborn fetus starting at the moment of
fertilization
this means that having assisting or
performing an abortion would be
classified as homicide even if roe v
wade is not overturned
louisiana lawmakers advanced this bill
out of committee on wednesday and
joining me now is nyu law professor
melissa murray who served as a former
clerk to then judge sonia sotomayor and
michelle goldberg columnist for the new
york times um melissa i want to start
with you on this because this
well let's before we get to louisiana
law i want to get back to the contempt
thing because i i am not a lawyer but i
read through what i really read as a
screed i've read supreme court decisions
before and usually they're very lawyerly
and you have to really sort of
understand the law and they have all
these citations everything this read
like a screed and then when i then later
discovered the who exactly and you know
was able to read up a little bit on who
matthew hale was i was like oh my
goodness
this guy is channeling one of the most
anti-woman witch-burning woman-hating
figures in all of human history your
thoughts
well to be fair to justice alito a
number of states have championed sir
matthew hale over the years um it's been
quite recent that many states have
repealed their exemption for marital
rape so he lived for quite a long time
in the law books of many states well
into the 20th century but you're exactly
right you show me that you hate women
without showing me that you hate women
this opinion is not just absolute it's
absolutist in its objections it's
antipathy for abortion it's antipathy
for choice and it's clear contempt for
the idea that the decision to become a
parent is so fundamental to the person
so fundamentally changes someone's life
that it cannot be a decision that is
formed under the compulsion of the state
he rejects this entirely and again i
think makes it clear that
the idea of choosing for yourself is
just something this court will not
tolerate certainly not now
and michelle you know the thing that's
so wild about this whole originalism
thing which i can recall
um a lot of republicans hectoring
katanji brown jackson judge catanji
brown jackson about originalism
originalism
if you go back to the original
conception of this country first of all
melissa and i weren't even people so
forget about us right but even women who
were white women were considered
absolutely the property and ward of
their husband to be transferred to their
husband even any property women didn't
even inherit property whatever they had
went right to the husband and an
unmarried woman was most likely to be
burned as a witch most people who burned
his witches were often unmarried or
widows people who were untethered to a
man which is the only thing that
grounded even white women in humanity so
if you are an originalist you
essentially want to go back to that
original conception of women who even 50
years after black men were technically
given the right to vote or still denied
it their own wives and daughters your
thoughts
you know what that's i think you're
exactly right about what's so chilling
about this decision or one of the things
that's so chilling is that it talk in
you know if you take this schema
seriously the only rights that are seen
as constitutionally legitimate are those
that have a deep history in the american
republic and
nobody
except for white men has rights that
have a deep history from the founding of
the american republic these were all
sort of
modern achievements right these were all
you know women got the right to vote in
the beginning of the 20th century many
of the other rights that were won were
towards the in the middle or the end of
the 20th century and so the idea that
because they were not there 200 years
ago 100 years ago i mean i believe that
one of the citations in
alito's opinion goes back to the 13th
century the idea that sort of something
gets
is is more legitimate because it has
been around for
hundreds of years just ensures that only
the most right-wing conception
of human rights will have the force of
constitutional law
right and only and by the way not even
all white men only white men who own
property if you were not a property
owner you also could not vote in the
originalist conception let me go back to
some of these footnotes because
you've
tweeted a lot and talked a lot about
melissa about the footnotes because you
know clarence thomas who's one of the
more ironic figures on the court because
i wonder what's going to happen when
they try to come for interracial
marriage that's going to affect him um
but i don't know what he would think
because he is he too claims this
originalist belief system um there was a
footnote that referenced eugenics this
is one of the most common talking points
among anti-choice among pro-forced birth
people and and it says here other amicus
briefs they present arguments about the
motives of proponents of liberal access
to abortion they note that some such
supporters have been motivated by a
desire to suppress the size of the
african-american population this has
been the guise of caring about black
people version of arguing against
abortion um they'll also sometimes try
to talk about the woman who was sort of
the progenitor of planned parenthood
they try this all the time he did it in
his
screed your thoughts
yeah so that footnote is actually really
interesting i've written a harvard law
review article about the whole eugenics
argument which really has its genesis in
a concurring opinion that justice thomas
filed in a shadow docket case from 2019.
it didn't get any takers on the court at
that point but it really had a
flourishing life in the lower federal
courts when many of justice thomas's
former clerks who are now judges cited
it liberally and the idea is that the
disproportionate incidence of abortion
among black women is part or the
vestiges of this larger campaign by the
birth control movement and the
eugenicist movement to cite birth
control clinics in black neighborhoods
for the purpose of stamping out black
reproduction and limiting black
political power now justice thomas um
you know i think it's a very canny move
um it's essentially reframing the social
meaning of abortion from being an issue
of women's equality and gender justice
to being a question of racial genocide
and racial injustice but the thing is
you don't actually need to cite it in
this opinion i had argued that it could
be a way to overrule roe vs wade by
saying that this is basically an act of
racial injustice and we've only we've
overruled many cases in the past in
order to remedy those racial injustices
but that's not the case here justice
alito is focusing on roe versus wade's
untethering of constitutional attacks
and its lack of deep roots in the
history of the united states he doesn't
need to do this so why is it there and i
think it is at once gratuitous but also
lending sort of a groundwork for what is
to come and this idea that we are
changing the social meaning of abortion
that we are casting this is eugenics and
that we are laying the stage for the
surveillance of women of color of
minority communities in all aspects of
their intimate lives
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you