The Washington PostDemocracy Dies in Darkness

Opinion That 13th-century law treatise Alito uses? Here’s what else it says.

Supreme Court Justice Samuel A. Alito Jr. in June 2017. (Jonathan Ernst/Reuters)

Many have speculated that Samuel Alito, in his draft opinion overturning Roe v. Wade, is trying to take us back to the 1950s, when White Christian men still ruled.

The Supreme Court justice is actually revisiting the 1250s, when the judge Henry de Bracton completed his summation of English law and custom “De Legibus et Consuetudinibus Angliae.” Alito’s opinion, after mocking the Roe decision for its “discussion of abortion in antiquity,” then provides a discussion of abortion in medieval times: “Henry de Bracton’s 13th-century treatise explained that if a person has ‘struck a pregnant woman, or has given her poison, whereby he has caused an abortion, if the foetus be already formed and animated … he commits homicide.’ ”

Case closed?

Over the weekend, "Saturday Night Live’s" cold open featured a 13th-century Benedict Cumberbatch proposing such a law against abortion (like the “law we have against pointy shoes”) and then threatening to burn a witch.

In fairness, Bracton’s treatise makes no mention of witches or pointy shoes, according to a searchable version of his work provided by Harvard Law School. But Bracton does have a lot to say about monsters, duels, bastardy, concubines, sturgeon “and other royal fish,” the “pillory and the ducking-stool," and "a judgment with infamy.”

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“Where he ought to be executed by the sword he shall not be put to death in any other way, neither by the axe nor the spear, by cudgels nor by the rope,” Bracton informs us. “Similarly, those condemned to be burned alive ought not to be injured by floggings, whippings, or tortures, since many perish while under torture.”

So true! Let’s take a closer look at the 13th-century work from which Alito draws in his cruel and unusual draft — and perhaps glimpse more of the world to which Alito and his fellow conservatives on the court would return us.

In Bracton’s account, “Women differ from men in many respects, for their position is inferior to that of men.” Alito didn’t cite that passage.

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Bracton also outlines procedures for “viewing a woman to discover whether or not she is pregnant” in which “discreet women” should in certain instances “carefully examine her by feeling her breasts and abdomen and in every way” to make sure she wasn’t faking. If the exam was inconclusive, the woman could be locked in a “castle at her own cost” where the exam would be repeated daily. Once the woman was found to be pregnant, “the time of conception, how, when, and where, and at what time she believes she is to give birth” was to be made “known to our justices at Westminster.”

Should there be suspicion of fraud, Bracton details a requirement to calculate “from the time at which she alleged that she conceived” to determine true fatherhood, as well as the view that “the woman cannot exceed the gestation period by a single day, even where the issue dies in utero or turns into a monster.”

Welcome to the post-Roe world!

In the treatise Alito leans on, women do have certain rights — if they are chaste. “When a virgin is defiled,” Bracton writes, “let her defiler be punished in the parts in which he offended. Let him thus lose his eyes which gave him sight of the maiden’s beauty for which he coveted her. And let him lose as well the testicles which excited his hot lust.” The truth of the victim’s accusation would “be ascertained by an examination of her body, made by four law-abiding women sworn to tell the truth as to whether she is a virgin or defiled.”

Alito’s model does not offer much hope for those trying to salvage American democracy. “The king has no equal within his realm” and “is the vicar of God,” Bracton writes, and “there is no greater crime than disobedience.” Some men “are above others and rule over them,” including dukes, earls and barons, whom kings invest “with great honour, power and name when they gird them with swords, that is, with sword belts. … Belts gird the loins of such that they may guard themselves from the luxury of wantonness.”

It might surprise today’s Republicans that there are more than two genders in Alito’s 13th-century inspiration. “Mankind may also be classified in another way: male, female, or hermaphrodite,” Bracton writes.

But his view of personhood might raise questions in 21st-century America. Bracton categorizes slaves as property: “this slave, this estate, this horse, this garment.” And he explains that “those born of unlawful intercourse, as out of adultery and the like, are not reckoned among children.” Those children “born of prohibited intercourse … are fit for nothing.”

You won’t find those passages in Alito’s draft opinion, either. But this medieval court is just getting started.