Alito's opinion on abortion is worthless. Breakdown of 1864 Oregon law shows it!

[Roland99]

Link to tweet

Want a quick break to read a 114 year old story that literally would not exist if Alito’s draft were right about the history of abortion law?

It’s a tale of scandal, intrigue, and *most of all* what ppl actually understood about the rt to abortion in early America. Thread:

https://threadreaderapp.com/thread/1522314696275075073.html

Want a quick break to read a 114 year old story that literally would not exist if Alito’s draft were right about the history of abortion law?

It’s a tale of scandal, intrigue, and *most of all* what ppl actually understood about the rt to abortion in early America. Thread:

In 1908, Oregon prosecutors charged an electrotherapist named J.D. Dunn w/ sexually abusing a 14-year-old patient. At trial, Dunn’s defense turned on a single witness, a certain Mrs. Kruse who said she was in the office during the alleged abuse and that it never happened. 2/13


Kruse’s testimony was a major problem for prosecutors. So they did what anyone who’s seen Law & Order would do: they tried to discredit her on cross-examination. After hard questioning, they got Kruse to admit she was Dunn’s former patient. But she refused to say more. 3/13

So prosecutors called another witness who would. That witness revealed that Dunn had performed an abortion on Kruse when she was three months pregnant.

What do you suppose happened next?

The answer reveals so much about the accuracy of Alito’s historical analysis. 4/13

In Alito’s world, this should’ve been the most jaw-dropping moment in open court. Under Oregon’s 1864 law, it was manslaughter to perform an abortion on “any woman pregnant w/ child.” To Alito, Dunn was just accused of an offense far more severe than what he was on trial for!5/13

But in the real world, prosecutors never charged Dunn. Quite the opposite. Appearing in the Oregon Supreme Court, attorneys for the state confirmed w/ little fanfare that “abortion is not a crime” under the 1864 abortion law unless it results in the death of “a quick fetus.”6/13

This meant that because he performed Kruse’s abortion at three months in gestation—well before quickening, or the fetus’s first noticeable movement around 16 weeks—Dunn had committed no crime at all.

This is devastating for Alito. Here’s why: 7/13

Alito’s opinion says the Ct’s governing test is whether abortion is “deeply rooted in history & tradition” in America. He knows history & tradition as of the founding and at common law are terrible for him b/c EVERY state allowed pre-quickening abortion at those times. 8/13

Alito’s response is to claim most states changed their laws to ban pre-quickening abortion by the time the 14th Amendment was ratified. This move is so crucial that he includes a 23-page appendix (longer than most opinions!) listing every state law he says is on his side.
9/13

Alito claims Oregon is one such state. But as we’ve seen, that can’t be correct. Not unless Oregon’s prosecutors LIED to their SCt when they affirmed the state’s longstanding position that pre-quickening abortions were perfectly legal under the 1864 abortion law. 10/13
With the Oregon miscount revealed, the rest of Alito’s analysis crumbles. Many other state abortion laws used similar language—and were also understood as applying only after quickening. I describe them in detail here: papers.ssrn.com/sol3/papers.cf… 11/13

The Originalist Case for an Abortion Middle Ground
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3921358


One final note. All my sources are public record, in particular the Oregon Supreme Court’s opinion in JD Dunn's case. See cite.case.law/or/53/304/

This opinion would’ve been easy to find if Alito or a clerk had searched ANY legal database for “abortion” and “quick”. 12/13

https://cite.case.law/or/53/304/
That Alito wrote his draft overruling the rt to abortion based on a mistaken historical conclusion without EVER bothering to do such a basic search—or worse, having done it, only to suppress inconvenient facts—says it all. Alito’s opinion has nothing to do w/ law or history. /end

Postscript: The jury voted to convict JD Dunn, and he was sentenced to a one year prison term. In all the local newspaper coverage of his trial, not a single mention is made of Kruse’s pre-quickening abortion—more evidence it was a total non-issue. See

Morning Oregonian. (Portland, Or.) 1861-1937, March 19, 1908, Page 12, Image 12

[2naSalit]

1. K&R

[empedocles]

2. Good context

[cilla4progress]

3. You mean,

Alito lied?!

[Roland99]

4. I'll make this pellucidly clear

Yes

[The Unmitigated Gall]

5. Soooooo...oooooooo...not surprised

That Sammy cherry-picked and stovepiped his research.

That’s some QUALITY repuke jurisprudence there, Sammy.

[ShazzieB]

12. The problem with Sammy is that...

Instead of looking at past legal precedent to inform the decision, he went in with the decision already made and then went looking for citations to justify it. And he obviously didn't find much.That was pelucidly clear from the fact that he resorted to citing a 17th century jurist who believed in executing "witches."

So...it really doesn't surprise me that he warped and twisted a few things. When you don't have a leg to stand on, you have to grab on to whatever you can get a hold of to keep from falling on your face. Unfortunately for Alito, he still ended up falling on his face and showing us all his ass in the process. Shame on him!

[The Unmitigated Gall]

15. Well said!

[RockRaven]

6. Why the fuck do people waste time arguing/analyzing as if Alito et al are acting in good faith?

"They mean what they say, but look how wrong and error-prone they are. Hurr-durr."

Logic, evidence, reason, etc have no foundational place in the generation of the legal opinions of people like Alito. He starts with the conclusion he wants, and back fills any old bullshit (that wasn't how he got to the conclusion in the first place) to give the appearance of having done his job seriously/honestly and to provide a windmill for his opponent to tilt at. Meanwhile that tilting accomplishes fuck-all in changing his mind. It reminds me a lot of religious apologetics that way.

The only way to deal with Alito is to gather enough political power to force a different outcome. Legal argumentation doesn't do that. Overwhelmingly, the masses are not engaged with the arguments. You have to get the public pissed off at the outcome and promise to change the outcome if they give you enough power.

[LudwigPastorius]

13. This.

Last edited Fri May 6, 2022, 02:21 PM - Edit history (2)

Demonstrating that Alito's opinion is 'worthless' is a waste of time, since it is not reviewable by any other court.

The options available are: pass a federal law making abortion legal (which would eventually probably be struck down by this Court), impeach and remove at least two anti-abortion justices, or add four more justices to the Court.

[Farmer-Rick]

14. Good point

The right wing idiots I live around always give me lies as proof. They tell me abortion was always illegal, abortions permanently damage women, fetuses breathe, feel pain, have heart beats and have full thinking, emotional lives inside women. Of course they throw in lies about a soul and a god and sin and hell.

So instead of arguing the real issue, bodily autonomy of a human adult, I have to disprove all these lies they spit out first. It's exhausting and futile.

They live in little make believe worlds, where everything is right or wrong, everything is about wealth, revenge and punishment. And sexual pleasure must always be punished...in women, not men so much.

[AZSkiffyGeek]

18. THis reminds me of the whole "Grassley said they can't appoint a SCOTUS Justice before an election!"

"There's no way he'll approve Barrett, he said he wouldn't!"

PLaying gotcha doesn't work when the other party doesn't care.

[Pacifist Patriot]

21. Excellent point

[uponit7771]

27. +1,

[progressoid]

32. +1

[NJCher]

34. What makes you think

The argument is intended for his republican followers?

It’s intended for his professional colleagues.

Now he has to dig his way out of this hole, which is not likely.

[Susan Calvin]

38. What I was going to say, but better said. nt

[cilla4progress]

7. Listening to a great podcast, Prevail, Greg Olear,

with Dame magazine editor Jennifer Reitman, about the American fascism problem writ large.

Recommend...

https://podcasts.google.com/feed/aHR0cHM6Ly9mZWVkcy5tZWdhcGhvbmUuZm0vcHJldmFpbA/episode/YmY5ODAwMjQtY2NmMC0xMWVjLWI3MTUtOWZlM2VhZjk2ZTU4?ep=14

[ancianita]

8. Thanks. Last night, two historians on Lawrence O'Donnell pointed out that Alito had cherry picked

historical references. They smashed him as a researcher -- or his clerks, indirectly.
Glad you could add to that.

[mcp37]

9. Alito does not have a good track record...

...when it comes to seeing the ramifications of decisions. I have not seen anyone mention (I'm sure someone has though) his famously mouthing "not true" during Obama's state of the union denouncement of the Citizens' United decision. We all are still seeing how that turned out.

[barbtries]

10. so the precedents he cites are bullshit.

it's all gobbledygook, another way to say we hate women, we love patriarchy, and fuck the majority.

[oldsoftie]

11. "Quickening". What an odd term to use. I've seen it many times.

[LudwigPastorius]

16. It's from Old English.

You'll see it used for "living" in the King James bible.

When someone these days says, "quick!", they're actually saying "look/be alive!".

(Apologies if I'm being overly pedantic.)

[oldsoftie]

19. Not at all! I did not know that about "quick". Pretty cool!

[Wednesdays]

20. In the Nicene Creed from the Book of Common Prayer (Episcopal church), Rite I

there is the phrase, "...And He shall come again with glory to judge both the quick and the dead..."

If I recall correctly, that was written in 1662, and the phrase "the quick and the dead" originated in Tyndale's 1526 translation of the Bible.

"The Quick and the Dead" is also the title of a 1995 movie with Gene Hackman.

On edit: in the very old version of Jack and the Beanstalk, the Giant says, "Be he quick, or be he dead, I'll grind his bones to make my bread." ("Be he" being another archaic phrase.)

[evolves]

23. Here you go:

From the Merriam-Webster website

The phrase "the quick and the dead" gives a clue. This phrase is from the Bible's New Testament, where the Day of Judgment is described as the time when Jesus will return from heaven to judge everyone, both the quick and the dead, determining who will have eternal life and who will be damned. (The phrase has also been used as the name of various books and movies.) It's clear who "the dead" are. "The quick," meanwhile, is everyone else. That's right: quick originally meant "not dead"—that is, "living, alive."

The word traces back to the Old English cwic, and shares an ancestor with the Latin words vivus and vivere, meaning respectively "living" and "to live," as well as with the Greek bios and zōē, meaning "life." Its original meaning is evident in a few other modern uses as well, such as quicken when it's used to mean "to reach the stage of gestation at which fetal motion is felt." (Quick itself also has an archaic meaning of "pregnant.&quot

[Pachamama]

36. The reference to it as fans of the Highlander movie will remember:

[DallasNE]

17. Earlier I Posted "Alito Is A Little Fast And Loose With The Truth"

That was based on a search for "history abortion America". That pointed out that abortion has been legal in America for more years than it has been illegal. It went on to mention a male crusader, much like Carrie Nation on alcohol, that one by one got States to pass laws banning abortion in the years following the Civil War. But none of the history I read was as definitive as this Oregon case. No wonder Justice Sotomayer keeps asking on these cases "how is this decision not based on religion?".

Also, the scope of this decision does not end with Roe and Casey. What about all of these other cases that independently relied on the language in the 14th Amendment, such as Brown v. Board of Education - does this bring back Plessy that affirmed separate but equal? This new Alito standard just unravels 100 or more years of SCOTUS decisions that were all "wrongly decided". How can it even be implemented?

[DAngelo136]

26. You Might Be Thinking Of...

Anthony Comstock..."social crusader" run amok. https://en.wikipedia.org/wiki/Anthony_Comstock

[Solly Mack]

22. K&R

[halfulglas]

24. There is also a tradition among many of the world's religions that life begins at first breath.

That is, when the infant comes out of the birth canal and takes its first breath. It is then a live birth and able to breathe on his/her own. In some traditions that is when the baby is infused with a soul of its own. The Catholic tradition didn't outright state life began at conception until I think around Pope Pius IX. Hell, the fundamentalists didn't come to this conclusion until around 1980 when Falwell used that hook for political power. All of a sudden, fundamentalists, which traditionally hated Catholicism found common ground to create a dominant space in the political sphere.

What is maddening is that they are pushing religious doctrine into public laws when there is no proof. Just because they feel this strongly does not mean it is medical fact. I know that we are people, we exist outside our mother's body. Despite their attempts, they have no right to convey personhood on something that isn't born yet.

[littlemissmartypants]

29. It's especially maddening that they feel qualified

to use religion, like they're ordained, to regulate health care, like they went to medical school.

It's remarkable that their egos are so big as to support them being so eminently qualified with such a broad range of expertise.

In truth they are regressive, evil minded people with little, if any regard, for the rights and well-being of anyone but themselves.

❤

[wnylib]

30. That belief that life (and the soul) begin

with the first breath derives from the Genesis creation story. God creates Adam out of the same elements and substances as the earth but Adam only comes alive when God breathes air into him. So life begins with the first breath, according to Genesis.

Whether you personally believe this or not, it makes a good comeback argument to anti abortionists. Create enough doubt among them over this religious point and it becomes more obvious to everyone that opposition to abortion is based on religious belief, not scientific, medical facts.

[Progressive dog]

25. Why am I not surprised?

Alito's opinion is based on what he wants to have happened. Of course he lied, that wasn't a legal argument. It was an attempted sale by a con artist.

[lame54]

28. His opinion is irrelevant...

They would have signed used toilet paper to get the job done

With the same outcome

[Faux pas]

31. Kickety Kickin'

[Blue Owl]

33. Alito can shove his draft up his goddamn fucking ass

And then eat shit and die.

[Emile]

35. K&R

[Martin Eden]

37. The more you dig through Alito's opinion

The more covered in dirt he becomes.