Thursday, May 12, 2022
More Reliance on Witch Trial-esque Precedent in the Draft Dobbs Opinion and the Case of Eleanor Beare
In the draft Dobbs opinion (p.17), Justice Alito writing for the majority to overturn Roe v. Wade and Casey, features as precedent the 1732 English case of Eleanor Beare. He uses this case to bolster his point that abortion was a crime "dating all the way back to the 13th century."
In 1732, for example, Eleanor Beare was convicted of "destroying the Foetus in the Womb" of another woman and "there-by causing her to miscarry." For that crime and another "misdemeanor" Beare was sentenced to two days in the pillory and three years' imprisonment.
The authority he cites to is 2 Gentleman's Magazine 931 (Aug. 1732). The citation and case are in Dellapenna, Dispelling the Myths of Abortion, a book heavily relied on as the key authority for Alito's history. Dellapenna is a retired law professor with an expertise in water rights turned anti-abortion advocate. Alito excoriates the Roe majority for its "unsupportable" reliance on the work of Cyril Means, a pro-choice supporter who Alito says provided work "the guise of impartial scholarship while advancing the proper ideological goals." Op. at 27. Yet Alito does precisely that here, just selecting an advocate from the anti-abortion side.
Online sources provide a a summary of the trial and what appears to be a transcript of The Tryal of Eleanor Beare of Derby, England. Authenticity is certainly a question as to these sources, but they match quotes used by Alito in his opinion. The trial summary is from The Newgate Calendar, a popular literary book of the 18th and 19th century editorializing and moralizing about legal cases.
Like the Salem witch trials, the proceedings including hearsay, finger pointing by neighbors and former friends, and lack of counsel for the defendant. Eleanor, apparently a midwife and the wife of a "labourer," is asked by three clients to assist in an abortion, and in another case healing a wife who took poison from another. The first charge of homicide seems to carry the case and sentence, as Beare is alleged to have helped a man she met at a bar poison the wife he hated. No allegation of pregnancy or abortion in that charge. Beare, cross-examining herself, says wasn't I just helping you save your wife whom you had poisoned with poison you got from a Mary Tecmans?
Eleanor is punished for these misdemeanors by sentence of standing in the pillory in the marketplace--the stockade of arms and head in the town square--where members of the community pummeled her with eggs, turnips, stones, "and any other filth they could collect." Annals of Crime in the Midland Circuit, or Biographies of Noted Criminals (1859). "She knelt down, and begged mercy of the still outrageous mob." Id. "Stones were thrown, which wounded her to such a degree, that her blood streamed down the pillory." Id. This "somewhat appeased the resentment" of the crowd, and she was returned to jail. Id.