Justice  /  Argument

Discarding Legal Precedent to Control Women's Reproductive Rights is Rooted in Colonial Slavery

Supreme Court Justice Samuel Alito made reference to the legal opinions of English jurist Henry de Bracton, foreshadowing the court overturning Roe v. Wade.

Supreme Court Justice Samuel Alito made reference to the 13th century legal opinions of English jurist Henry de Bracton in his leaked draft opinion foreshadowing the court overturning Roe v. Wade. De Bracton was an ancient misogynist who believed women to be inferior to men, and that they sometimes actually gave birth to monsters. Alito also cited the 17th century English jurist Sir Matthew Hale, who sentenced women to death for witchcraft and did not believe marital rape possible because women were the property of men. These antiquated views are vile. That a 21st century Supreme Court justice would cite these men, repugnant. But American jurisprudence has long cherry-picked opinions from the English law upon which it was founded to suit the needs of the wealthy and powerful it serves, and women’s bodies have long been a fulcrum for determining which legal opinions to pick.

Key v. Mottrom, the 1656 case which came before the colonial-era Virginia Supreme Court, shows the extent to which American jurisprudence will torture English law to arrive at opinions favored by those in power. As in the case of abortion before today’s court, the stakes in the Key case could not have been higher, for they involved who would, and who would not, be considered a slave at birth. Thus, a case from the 17th century and a case four centuries later share in common that both are at the nexus of gender, class and race.

Elizabeth Key, born circa 1630, was the daughter of one of the first African women brought captive to Virginia in the 1620s, and an Englishman named Thomas Key, who arrived in Virginia in 1619. Key soon married an aristocratic woman named Martha and thereby ascended the ranks of colonial American power and wealth. Thomas Key died in 1636, but not before signing a document transferring young Elizabeth to the custody of one Humphrey Higginson, who sold her to William Mottrom. Upon Mottrom’s death, the executors of his estate sought to resell Elizabeth as property. Only this time she objected, suing Mottrom’s executors for her freedom, and that of her young infant son, John.