Discarding legal precedent to control women’s reproductive rights has its roots in colonial slavery

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Clyde W. Ford’s latest book is of blood and sweat: Black Lives and the Creation of White Power and Wealth. (HarperCollins, 2022).

The Modern Medea (1867) represents Margaret Garner who, having escaped from slavery, was accused in 1856 of murdering her daughter to prevent her from returning to slavery.

The incident reflects the consequences of the American colonial legal innovation of childbirth follows pregnancy discussed by the author.

Supreme Court Justice Samuel Alito referred to the 13the century legal opinions of English jurist Henry of Bracton in his leaked draft opinion heralding the court’s annulment Roe vs. Wade. De Bracton was a former misogynist who believed that women were inferior to men and sometimes actually gave birth to monsters. Alito also cited the 17the 20th-century English jurist Sir Matthew Hale, who sentenced women to death for witchcraft and did not believe marital rape was possible because women were the property of men. These old-fashioned views are vile. than a 21St. The Supreme Court of justice of the 21st century would summon these men, disgusting. But American jurisprudence has long selected views of the English law on which it was founded to meet the needs of the rich and powerful it serves, and women’s bodies have long been a fulcrum in determining which legal opinions to choose.

Key vs. Mottrom, the 1656 case that 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 abortion case before the court today, the stakes in the Key case could not have been higher, as it involved who would be considered a slave at birth and who would not. Thus, a case of 17the century and a case four centuries later have in common that both are at the nexus of gender, class and race.

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Elizabeth Key, born around 1630, was the daughter of one of the first African women held captive in 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 thus rose through the ranks of American colonial power and wealth. Thomas Key died in 1636, but not before signing a document that transferred young Elizabeth to the custody of one Humphrey Higginson, who sold her to William Mottrom. After Mottrom’s death, the executors of his estate sought to resell Elizabeth as her property. Only this time she objected, suing Mottrom’s executors for her freedom and that of her infant son, John.

Key’s case was first heard in Northumberland County Court, which ruled in his favor. But on appeal, he received an adverse ruling from the Virginia Court of Appeals, setting off a showdown in the Virginia General Assembly, the colonial-era Supreme Court. In colonial America, there was no separation between the judicial and legislative branches of government; legislators were judges, and judges were legislators. Key argued that she was not Mottrom’s property because, under current English law, she was not a slave. Servitude or liberty, following English custom and law of the time, was based on the status (bonded or free) of the father, not the mother. On that basis, the colonial Supreme Court issued an opinion (not a ruling) in Key’s favor and sent the case back to the Northumberland County Lower Court for final disposition in 1659. Mottrom’s executors, probably feeling they would lose on appeal, they offered no objections. to the original sentence, so Isabel and her son were released.

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Apart from genealogists tracing actor Johnny Depp’s ancestry back to Elizabeth Key, his case would probably have remained an interesting footnote in the history of American jurisprudence were it not for the fact that colonial lawmakers and jurists They realized that their victory opened an absolutely huge gap in the legal foundations of slavery. Most interracial couples during the early years of this country occurred when white men, forcibly or not, had sex with black women. If the children of those relationships were free by law, then the foundations of slavery in America would crumble.

So legislators, who were also colonial-era jurists, sprang into action after the Key verdict, just as conservative state legislators sprung into action after the original ruling in Roe vs. Wade. The rallying cry then was that the legal theory of birth follows father (offspring status follows parent) had to be overturned for slavery to survive and thrive in America. In the late 1600s, in Virginia and Maryland, a new legal theory childbirth follows pregnancy (the state of offspring follows the womb) took the place of old English law, and laws to that effect were enacted and enforced. Not Gettysburg or Antietam, but the female body, the black female body, was the original ground on which the battle for slavery in America took place.

The colonial reaction to the Elizabeth Key case was only the first of many instances in which American jurisprudence imported and then distorted English law to support slavery. Black women, other women of color, and all poorer women who lack the means to travel to states where abortion will remain legal will be hit the hardest by the Supreme Court overturn Roe vs. Wade. Alito’s leaked draft is a reminder of how the female body remains a battleground for issues of gender, class and race; a battlefield where powerful white men feel they have an inalienable right to rule.

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