What are Alito’s primary sources for suggesting the criminalization of women for terminating their pregnancies? One is a 1732 journal called “Gentleman’s Magazine.”
When a concrete reliance interest is asserted, courts are equipped to evaluate the claim, but assessing the novel and intangible form of reliance endorsed by theplurality is another matter. That form of reliance depends on an empirical question that is hard for anyone—and in particular, for a court—to assess, namely, the effect of the abortion right on society and in particular on the lives of women.
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,’ Baere was sentenced to two days in the pillory and three years’ imprisonmentabortions that kill the mother as criminal.
The Solicitor General offers a different explanation of the basis for the quickening rule, namely, that before quickening the common law did not regard a fetus “as having a ‘separate and independent existence.
What are Alito’s primary sources for this dubious framework? One is a 1732 journal called “Gentleman’s Magazine.” Alito misleadingly cites court precedent to claim that banning abortion is definitively not sex discrimination.State’s regulation of abortion is not a sex-based classification and is thus not subject to the “heightened scrutiny” that applies to such classifications.
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