The competition is intense, to be sure, but high on the list of the most stupid attacks on Justice Alito’s leaked draft majority opinion in Dobbs is the objection that Alito includes the 17th-century English jurist Matthew Hale among the authorities he cites in discussing the common-law treatment of abortion. Hale, as one typical critic complains, “was considered misogynistic even by his era’s notably low standards.”
One simple answer to this criticism is that Hale’s account of the common-law treatment of abortion stands or falls independent of his own virtues or vices. The Alito draft cites Blackstone, Coke, and Bracton, along with Hale, to establish that abortion after quickening was criminal at common law, and it cites Blackstone, along with Hale, to establish that the common law “did not condone even pre-quickening abortions.” One could try to argue that these authorities were wrong about the common-law treatment of abortion, or one could try to argue that Alito’s draft makes improper use of the common-law treatment of abortion, but it’s a gross ad hominem to fault Alito for citing Hale.
For what it’s worth, just two years ago in Kahler v. Kansas, both Justice Kagan in her majority opinion and Justice Breyer in his dissent cited Hale with approval. The legal question in that case was whether the Due Process Clause of the Fourteenth Amendment requires the states to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.
As Kagan explains, a state rule about criminal liability “violates due process only if it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” (Cleaned up.) The Court’s “primary guide in applying that standard is ‘historical practice,’” and “in assessing that practice, we look primarily to eminent common-law authorities (Blackstone, Coke, Hale, and the like), as well as to early English and American judicial decisions.” That is the very passage that the Alito draft quotes as it undertakes the similar project of determining whether a right to abortion is “deeply rooted in this Nation’s history and tradition” (under the “established method of substantive-due-process analysis” that the Court summarized in Washington v. Glucksberg (1997)).
Elsewhere in her opinion, Kagan respectfully refers to “Lord Matthew Hale.” Alito uses the lesser honorific “Sir.”
In his dissent in Kahler, Breyer similarly invokes the “four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, [who] each linked criminality to the presence of reason, free will, and moral understanding.”