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:

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

Fine, here’s what I think is going on:

White men have long been a minority in US society (currently 29%), but until very recently, they controlled all the ladders of ascent into cultural, political, media, or economic relevance.

Fine, here’s what I think is going on:

White men have long been a minority in US society (currently 29%), but until very recently, they controlled all the ladders of ascent into cultural, political, media, or economic relevance.

That doesn’t mean that women and people of color weren’t visible in politics or culture. But it means the people who rose up the ladder into a position of influence generally had political beliefs that white men found tolerable, if not outright appealing.

You’re a woman or especially a minority, and you want to be a Times columnist, a judge, a congressional leader of note, a TV anchor?

If your ideas conform with the ideas of the white men who run these institutions, you can rise, rise, rise. If they don’t you likely won’t.

Now it’s important to switch perspectives and imagine what this system looked liked to white men themselves: consensus.

They could look out their window and see that almost everyone notable agreed with them on really divisive cultural issues!

Occasionally someone would break into the cozy unanimity with ideas that ran against the consensus, like a Jesse Jackson running for president. But even when this happened, all the major cultural and political power centers would reiterate that this was radical fringe politics.

Today… this system mostly remains in place, actually! Most political, cultural, and economic institutions are still controlled by white men! Many nonwhite, nonmale people who advance in these institutions do so by being agreeable to white male gatekeepers! (No names, sorry.)

But cracks are starting to emerge. There are people appearing in politics and culture who do not appear to have really been let in by white male gatekeepers - in fact, who express ideas that the vast, vast majority of white male gatekeepers find incorrect or even annoying.

What are these ideas? It varies but generally they are, naturally, ideas that challenge the power structure itself, point out the ways in which white people and men hold disproportionate power, and point out the way that power is exercised, often unfairly.

Why are cracks emerging now? Partly it’s a cultural evolution. Partly it’s technological (Twitter plays a big role here). But I think most of it is just demographic. America’s white majority is rapidly becoming a white plurality. Total societal control just isn’t sustainable.

And as this has happened, the world as experienced by white men (who, let’s remember, do still control the vast majority of political, cultural, and economic institutions) has also changed: where they once saw consensus, now there’s conflict.

For many white men, including many who hold vast power and influence, it feels like a bunch of malcontents - espousing ideas everyone previously agreed were radical, no less! - have forced their way past the gatekeepers, and are now making everything complicated and unpleasant.


The response of white men has varied. Some have argued that we need to restore the consensus of earlier years, unaware it was illusory and achieved partly by exclusion. Some have desperately kept trying to gatekeep.

And a whole lot of them have just gotten really, really angry.

And that’s where we are now: a small but growing number of people with perspectives that are not agreeable to white male gatekeepers pushing into the public eye, and white men seeing it as radicals smashing a consensus they were told was shared by everyone worth listening to.

And I think it's not a coincidence that the figures and groups that attract the most obsessive ire, who are blamed for causing all the trouble, are also the figures and groups that seem to have most dramatically circumvented the gatekeepers: AOC. Nikole Hannah-Jones. BLM.

One last thing I'll say: in my experience, white men are skeptical of the idea of white male gatekeeping (which makes sense, because it's not like we all got together and decided to do it).

But women and people of color are often acutely aware that their ability to exist in elite circles depends on not challenging certain ideas, and not rubbing powerful people the wrong way. Where do those ideas come from? What do most of those powerful people have in common?

Scott MacFarlane @MacFarlaneNews

They tried to retreat.... the mob pursued

Powerful court exhibit from US Justice Dept in Capitol riot case

Marge Greene gets hot when confronted by Jim Acosta today about the text by her suggesting Trump should declare martial law.

The Sentinel asked Fine about why he waited to get Disney's blessing before filing this legislation.

"It was very important to me that it not damage Disney’s business. COVID’s been hard enough," Fine said at the time.

“According to text messages between Bogdanoff and Fine, before filing the bill, the two of them first ran the proposal by Walt Disney Co.’s Disney Vacation Club and the American Resort Development Association, the timeshare industry’s trade association, for approval. The messages were obtained by the Orlando Sentinel under public records laws.”

https://www.orlandosentinel.com/business/tourism/os-bz-florida-timeshare-property-tax-legislation-20210329-krqu433mmrfnze7culx7lj2i5q-story.html