Maine Voices: Dobbs resurrects the very worst of American ‘history and tradition’

As printed originally by the Portland Press Herald on July 14, posted with permission of the author.

The principles on which the Supreme Court’s judgement relies deserve to be left in the past.

By Barbara Cray

I am outraged on many levels by the Supreme Court’s decision to overturn Roe v. Wade, but what truly broke my heart was the deliberate choice by the Dobbs majority to rely on – and claim as legitimate authority – obsolete historical legal principles that were part of structural sexism institutionalized in Anglo-Saxon laws. These principles were brought to and incorporated into American society and government, pursuant to which women were subjugated and had no rights in society.

Dobbs states that a right cannot be protected under the Constitution unless it is “rooted in the Nation’s history and tradition,” finding that the right to abortion is not so rooted, and that this was because administering a poison to a pregnant women was considered a crime by ancient English common law and by United States state statutes that existed between 1820 and 1879.

Barbara Cray is a lawyer in Maine, a former law clerk for a federal judge and the producer of a movie about the women’s suffrage movement, “Votes for Women: The History of Women’s Suffrage Through Song.”

Dobbs first references three “eminent” English legal authorities. But what do these ancient English lawyers say about women’s rights? Henry de Bracton (1210-1268): “Women differ from men in many respects, for their position is inferior to that of men.” Matthew Hale (1609-1676): “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for … the wife hath given up herself in this kind unto her husband.” William Blackstone (1723-1780): “… though our law in general considers man and wife as one person, yet there are some instances in which she is separately considered; as inferior to him, and acting by his compulsion.” Thus this English common law on abortion was part of a comprehensive scheme to deny rights to women and allow men, or the government, to control their lives and their bodies.

And the U.S. state statutes in existence prior to ratification of the 14th Amendment in 1868 were all enacted when women in America had no rights. This is amply documented by the Declaration of Sentiments prepared by Elizabeth Cady Stanton for the first Women’s Rights Convention at Seneca Falls in 1848, wherein she writes: “[t]he history of mankind is a history of repeated injuries and usurpations on the part of man toward woman, having in direct object the establishment of absolute tyranny over her.” In her long “list of grievances” were: “He has taken from her all rights in property,” and “he has made her, if married, in the eye of the law, civilly dead,” and “he has endeavored in every way that he could to destroy her confidence in her own powers to lessen her self-respect and make her willing to lead a dependent and abject life.”

And so our nation’s history and tradition as of 1848 is the denial of civil rights to women (and others). Therefore, per Dobbs, if you had no right to control your own body then, you will have no constitutional right to control of your own body now and, what’s more, we’ll strip away the constitutional rights you have relied on for almost 50 years. This result is a constitutional tragedy. As stated by Justice Breyer writing for the dissent: “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply.” But this is now the law of the land per the Dobbs decision.

Maine has a powerful leader in preserving abortion rights in Governor Mills, who said the Dobbs decision represented “a fundamental assault on women’s rights and reproductive freedom.” Democratic legislative majorities in Maine have been fighting off anti-abortion bills from Republicans. It is essential to reelect Governor Mills and return Democratic majorities to the State House, because that Maine will safeguard the rights of women that the Supreme Court will not. And let’s also help women in other states elect enough Democratic U.S. senators so that the filibuster can be voted out and meaningful legislation can finally be passed.

Otherwise, the sexism and subjugation of women that was “rooted in our nation’s history and tradition” will again be part of our modern American history and tradition. This would be truly heartbreaking.

About the Author
Barbara Cray is a lawyer in Maine, a former law clerk for a federal judge and the producer of a movie about the women’s suffrage movement, “Votes for Women: The History of Women’s Suffrage Through Song.”