The U.S. Supreme Court decision overturning Roe v. Wade argues that a fundamental right must be “objectively, deeply rooted in this Nation’s history and tradition,” to be considered a constitutional right. The justices who voted to overturn the law earnestly attempt to validate their overwhelmingly unpopular reasoning with 116 pages of circular illogic and gaslighting.
Justice Samuel Alito attempts to substantiate the soundness of their reasoning with historical references (1). For instance, he inexplicably refers to British Parliamentary law from 1803 (20 years after the Revolutionary War ended,) and refers to Maryland law as it was decreed in 1692. He also refers to “manuals of law printed for justices of the peace in the Colonies in 1762 and 1788” as proof that, historically, in this country abortion was a crime. (As a side point, contradicting their own point, they also say “some manuals repeated Hale’s and Blackstone’s statements that anyone who prescribed medication “unlawfully to destroy the child” would be guilty of murder if the woman died,” which shruggingly ignores the fact that their own reference considers the woman’s death to be murder, not the fetus.)
Their argument is that these laws were in place during the early years of American history and continued throughout most of America’s existence, and therefore should be held as ultimately constitutional.
So what other laws were in place during this time period in America?
In 1692, the Salem Witch Trials were held. You could be accused of witchcraft if you had a weird mole, or slammed a church door too hard (2). In 1641, the Body of Liberties, the legal code for the Massachusetts Bay Colony (3), made witchcraft a capital offense. “If any man or woman be a witch that is, hath, or consulteth with a familiar spirit, they shall be put to death.” This sentence was followed by Bible scriptures because Puritans came to this country to be able to kill other people with impunity using the Bible as justification, so it was important to make such justifications as convincing as possible. Killing people because they didn’t practice religion in the Puritanical way is “objectively, deeply rooted in this Nation’s history and tradition.”
In the 18th century, in America and in Europe it was believed that illness was caused by an imbalance of “humors” in the body (4). Medical treatments for almost any illness included bloodletting, laxatives, ingestion of toxic metals, and other “treatments” that they believed rebalanced these humors. Handwashing by doctors in the mid-19th century as a necessary process to avoid killing patients was considered a newfangled and ridiculous idea, and wasn’t formally part of medical care in America until the 1980s (5). Basing medical care on primitive and unscientific beliefs is “objectively, deeply rooted in this Nation’s history and tradition.”
In 1845 it was legal for James Marion Sims to experiment with agonizingly painful surgeries and procedures on dozens of enslaved Black women, to develop gynecological methods that he then — after he had perfected his methods — used on consenting white women (6). In 1973, only after an Associated Press story exposed the fact that for 40 years Black men were unknowingly experimented on by being denied treatment for syphilis without their consent, the Tuskegee Study researchers reluctantly ended their unethical experiment (7). By the time the study ended, “28 participants had perished from syphilis, 100 more had passed away from related complications, at least 40 spouses had been diagnosed with it and the disease had been passed to 19 children at birth.”
It was legal to lynch Black people from the moment white settlers imported enslaved Africans onto this soil in 1619. Federal law did not criminalize lynching as a hate crime until March 29, 2022 when the Emmett Till Antilynching Act was signed into law by President Biden (8).
Clearly, an abject disregard for Black people’s right to freedom and control over our own bodies and lives has been “objectively, deeply rooted in this Nation’s history and tradition.”
Clarence Thomas, the Black Supreme Court justice, penned a shocking concurrence of the decision, vilifying the Due Process Clause. Thomas is well aware that interracial marriage was not an accepted federal right until 1967 when the Supreme Court in Loving v. Virginia ruled that, based on the Fourteenth Amendment, it was unconstitutional to ban interracial marriage anywhere in the country no matter what individual racist states wanted (9). Yet he unconvincingly argues that the inconvenient fact that his marriage to a white woman depends on the Due Process Clause is not an issue because “that’s not what we’re talking about right now.” He refuses to admit that anti-interracial marriage sentiment and laws are “objectively, deeply rooted in this Nation’s history and tradition,” and that his constitutional right to marry his white wife, Ginni Thomas, in 1987 had only been a right for 20 years at the time.
Racism, barbarism under the guise of religious piety and hypocritical devotion to the letter of Biblical law, and legal disenfranchisement based on other ‘isms” has been an unwavering cornerstone of American policy. Alito and Thomas are correct about this: A callous and malevolent disregard for women’s rights, and particularly Black women’s rights, to physical autonomy and agency over our own bodies and the use thereof has been “objectively, deeply rooted in this Nation’s history and tradition,” beginning with the kidnapping of thousands of Black women and the continued violent and aggressive use of their bodies.
Applying an anachronistic standard of only following beliefs that are “objectively, deeply rooted in this Nation’s history and tradition,” derails America’s painstaking efforts to be a constantly improving, forward-facing nation, and instead ensnares us all in a misogynistic, backward-spiraling, and fatal embrace.
Online references: (1) www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
(2) www.history.com/news/salem-witch-trials-justice-legal-legacy
(3) www.mass.gov/doc/1641-massachusetts-body-of-liberties/download
(4) https://retrospectjournal.com/2021/05/02/the-four-humours-understandings-of-the-body-in-medieval-medicine/
(5) www.popularmechanics.com/science/a31982721/history-washing-hands/
(6) www.history.com/news/the-father-of-modern-gynecology-performed-shocking-experiments-on-slaves
(7) www.history.com/news/the-infamous-40-year-tuskegee-study
(8) https://eji.org/news/antilynching-act-signed-into-law/
(9) https://supreme.justia.com/cases/federal/us/388/1/
Tolley M. Jones lives in Easthampton. She w rites a monthly column for the Gazette. She can be reached at columnist@gazettenet.com.