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The Battle Against GOP Rape Culture: the Impact of Reproductive Freedom on the Midterms, Part 2 [1]
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Date: 2022-08-08
(This is a follow-up to the first part)
I usually write about Hope Springs from Field PAC’s canvassing (and now, post cards to new voters) project yet no one is immune from the Culture Wars that are threatening our Freedom and Liberty. So far (not including this Saturday’s canvassing since all reports aren’t in yet), we’ve collected 93,004 Issues Questionnaires this year from voters in Arizona, Florida, Georgia, North Carolina, Nevada, Ohio, Pennsylvania and Wisconsin that ask open-ended questions about voter views and single issue preference. And we hear a lot about issues driven by news, such as the recent Dobbs decision including what I have summarized (after 93,004 responses) the Battle against GOP Rape Culture.
In this diary, I want to go over the battle lines.
Three days after the Supreme Court issued its egregious decision to overturn Roe v Wade, Dr. Caitlin Bernard got a call from an Ohio colleague about a 10 year old patient who was six weeks and three days pregnant. The girl’s mother took her (she was 9 years old when she was raped) to Indiana to receive an abortion.
Tens of thousands of girls under the age of 14 are raped every year (more go unreported) and many of those who become pregnant receive abortions. Which is why Republicans are so intent on removing the Rape exception from their anti-abortion bills. But that isn’t the tell, as it were. Republicans cast considerable doubt on the claim, reverting to norm. There was no rape (they claimed), no 10 year old who underwent an abortion procedure — this was all a false flag due to anger over Roe being overturned.
Their claims of doubt came straight out of the GOP Rape Culture playbook. And the Alito opinion, as well. It’s almost too eerie.
In 1988, Law Professor Susan Estrich wrote a book entitled, Real Rape:
Estrich tracked rape cases from the 17th century to the present and determined that the decisions of male judges (women were prohibited from practicing law for most of that time) reflect society's feelings toward women. The law, on this issue, she says, is indeed not neutral. According to Estrich, laws about rape were designed to protect men from false charges made by vindictive women. In the 17th century, English Lord Chief Justice Matthew Hale warned that rape is a charge “easily to be made and hard to be proved, and harder to be defended by the party accused, tho' never so innocent.'' The burden of proof was on the woman to prove her own lack of guilt, not on the man to prove that he had not committed a crime. Hale's distrust of women translated into a clear set of presumptions against women that carried forward into this century.
If you read Justice Alito’s opinion that struck down Roe v Wade, you would have seen Hale’s name. It was all over it. It was, in fact, central to his reasoning. Alito’s reliance on Hale, an orphaned Puritan, was critical because he wanted to employ the history of Common Law as a means for proving that Roe was “wrongly decided.” And Hale was basically the beginning: “Hale’s grandeur in English legal history lies in the part he played in the development of core elements of the Common Law system.” To refine the point, Hale was not only there are the beginning of the development of Common Law but he was there when the idea of stare decisis began. Alito was well versed in Hale.
But Matthew Hale is equally central to the GOP Rape Culture. Much has been written about Hale since the Alito draft opinion leaked, much of it about his attitudes towards the rights of women. Lack thereof might be a better phrase. From the Washington Post:
Hale believed that authorities should distrust women who reported having been raped. In his mind, rape was “an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent.” Judges and lawyers endlessly quoted Hale’s canard well into the second half of the 20th century. Echoes of Hale’s suspicion of women still reverberate in American law and culture, helping rapists avoid punishment. In Hale’s words: “The husband cannot be guilty of a rape committed by himself upon his lawful wife, for by their mutual matrimonial consent and contract the wife hath given up herself in this kind unto her husband, which she cannot retract.”
The New York Times wrote, “A central tenet of Hale’s legal philosophy was that giving women legally enforceable rights over their own bodies was a threat to men’s freedom.” If it wasn’t clear enough: Men’s freedom was worth protecting, in fact, it was worth more than any thought of women’s freedom. Of course, Hale is only one of the ancient sources Alito references. Henry de Bracton’s 13th-century treatise (pre-Common Law) is cited, as well. “In Bracton’s account, ‘Women differ from men in many respects, for their position is inferior to that of men’.” Most of us were appalled to read that.
The Wall Street Journal brings it home:
Friday’s ruling is a triumph for the doctrine of originalism, with significant consequences for a country with an increasingly diverse and tolerant population. “The version of American history you get from constraining your historical evidence to the documents originalists see as mythical gives you centuries of constitutional history when women and people of color were completely disenfranchised,” historian Jill Lepore said Friday. “And that’s the basis now for the continued denial of rights.”
The Supreme Court has attempted to codify, not Roe, but 18-century attitudes. It is a reminder that the Constitution was ratified before women — and African-Americans and even poor Whites -- had a right to vote. In essence, the court elevates men of means’ dominance to a constitutional imperative in the 21st century.
It’s not simply that Alito’s opinion on Dobbs was egregiously wrong and attempts to tip the scales of a ferocious Culture War towards the extreme right-wing. It ignores the rights and liberties of women full stop. In their dissent, Justices Breyer, Sotomayor, and Kagan note:
[END]
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[1] Url:
https://www.dailykos.com/stories/2022/8/8/2114902/-The-Battle-Against-GOP-Rape-Culture-the-Impact-of-Reproductive-Freedom-on-the-Midterms-Part-2
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