The Supreme Court's June decision in Dobbs v. Jackson Women's Health Organization, which overturned the half-century-old precedent of Roe v. Wade, occasioned worldwide rage, enough that Justice Samuel Alito — author of the majority opinion in Dobbs — mocked the outraged Prince Harry and other luminaries. Jewish advocacy groups, among others, have filed suits argued that laws restricting abortion may violate religious freedom, but ironically enough, the widespread rage may have prevented people from noticing what may be the most outrageous feature of Dobbs.
Alito's opinion sneaks in a 12th-century religious penalty for abortion — not a criminal statute — citing it in a section meant to support the history of criminal punishment, and with its ecclesiastical origins neatly excised. Those who are outraged by this are now free to mock Alito, unless they'd rather have him impeached — along with the whole Dobbs majority, perhaps — for deceiving America and violating the separation of church and state.
Page 17 of the Dobbs slip opinion, in footnote 25, cites the legal treatise "Leges Henrici Primi" (or "Laws of Henry I"), which dates to around 1115 A.D.:
Even before Bracton's time, English law imposed punishment for the killing of a fetus. See Leges Henrici Primi 222–223 (L. Downer ed. 1972) (imposing penalty for any abortion and treating a woman who aborted a "quick" child "as if she were a murderess").
Legal historian Leslie John Downer's translation of the original 12th-century Latin text, however, reads, "[I]f she does this [intentionally destroys her embryo] after it is quick [animate], she shall do penance for seven years as if she were a murderess." Alito carefully clipped out the words "she shall do penance for seven years" from the quotation, between "quick" and "as."
Why hide those words? Unless he was sleepwalking, Alito understood perfectly well that he was committing a gross material omission, obscuring the fact that the "penalty" in this medieval text was merely religious and penitential, not civil or criminal. Religious "crimes" are not crimes at all, by our modern legal standards. (The Leges Henrici, at pages 222-223, mentions paying "wergeld" and "manbot," or reparations, including compensation for loss of a pregnancy, if a pregnant woman is slain by any means. But that's not "punishment for abortion," which is merely penance in the Leges.)
To say this is "just a footnote" is no excuse. If footnote 25 had used undisclosed material that was atheist, Islamist or Satanist in origin, people would be outraged; given the First Amendment's Establishment Clause, which bans any state religion, they may be equally outraged by the court's deliberate concealment of the Christian prehistory to Dobbs. The court's majority has no right to inflict state religion on Americans, in even the slightest dose.
But wait, there's more. On pages 16 and 17, the Dobbs opinion bookends footnote 25 with, "We begin with the common law, under which abortion was a crime at least after 'quickening'," before moving on to common-law sources like Henry de Bracton and the statement, "English cases dating all the way back to the 13th century corroborate the treatises' statements that abortion was a crime." This all misleadingly implies that the Leges, which is certainly a treatise, criminalizes abortion under common law.
Then Alito crosses the Rubicon, proclaiming on page 25 that "an unbroken tradition of prohibiting abortion on pain of criminal punishment persisted from the earliest days of the common law until 1973." This is fraudulent, by any analysis. If the Leges Henrici is common law, as Alito presents it, mixed in with common-law sources like Bracton, it's dishonest to say that common law has always criminalized abortion. But if Alito then wishes to backpedal and claim that the Leges, with its penance-penalty, is really canon law (i.e., church law), not common law, then two things follow: Alito falsified his argument by categorizing the Leges with common law, and he more flagrantly snuck Christian state religion into the Dobbs decision. Falsehood, either way.
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Finally, English common law is normally understood to begin after 1066 (with the Norman Conquest) and no later than the 12th century, since King Henry II (1133-1189) is often called "Father of the Common Law." But Bracton, Alito's earliest legitimate citation for criminalizing abortion, wasn't born until around the year 1210. In short, Alito provides doctored evidence, or none at all, for his conclusory statement that the "earliest days of the common law" criminalized abortion, and creates a kind of fake history — the fiction of an ancient, continuous Anglo-American pedigree of criminalizing abortion — which supposedly supports overturning Roe.
Was this an unintentional mistake? That's unlikely, especially since the present author told the court, in a brief filed May 21, after the Dobbs draft leak, that the opinion failed to explain that the penalty in Leges was purely ecclesiastical. The justices paid no attention, and the error was repeated in the final June opinion.
Alito creates a kind of fake history — the fiction of an ancient, continuous Anglo-American pedigree of criminalizing abortion — which supposedly supports overturning Roe.
Oddly, the three dissenters in Dobbs failed to catch the Leges problem, and even committed a minor error on page 13 of the dissent: "Of course, the majority opinion refers [to] earlier history[;] it goes back as far as the 13th (the 13th!) century." In fact, the Leges is even older, from early in the 12th century. Their anger, perhaps, made them "miss the trees for the forest": Hyper-focused on the big-picture loss of Roe, the liberal justices missed crucial details about the Leges and state religion. Whether one is "pro-choice" or "pro-life," the truth is important.
What can Americans do, now that they know about "Leges-gate"? (In HBO's "House of the Dragon," Aemma Arryn learns the hard way how reproductive freedom fares when women are kept uninformed.) First, the religious freedom lawsuits contesting abortion restrictions may now seem a lot less frivolous. Second, Americans may be interested, on Election Day or otherwise (e.g., by complaining to Congress' judiciary committees), in letting the Supreme Court know how they feel about Dobbs' deceitful, smuggled-in religious doctrine.
Ironically, Alito recently dissented from an order compelling Yeshiva University to recognize an LGBTQ group (at least for now) by arguing, "The First Amendment guarantees the right to the free exercise of religion, and if that provision means anything, it prohibits a State from enforcing its own preferred interpretation of Holy Scripture."
From him, that seems especially hollow, even ridiculous, given the sub rosa state religion Alito slipped into Dobbs. True friends of religious liberty, and other liberties as well, may want to act.