Margaret Atwood: ‘The Supreme Court wants to enforce 17th century laws’

In the early 1980s, I embarked on writing a science fiction novel about a future in which the United States had broken up. Part of the country was now a theocratic dictatorship based on the religious doctrine and jurisprudence of Puritan New England in the 17th century.

I had set the scene in the vicinity of Harvard University, an institution renowned for its liberalism in the 1980s, but whose raison d’être, three centuries earlier, was to train the clergy of Puritanism.

Back to the past

In the imaginary theocracy of Gilead, women had almost no rights, just like in New England in the seventeenth century. The biblical texts had been carefully selected, the selected passages were subjected to a literal interpretation. In Genesis – particularly in the family of Jacob – the wives of the patriarchs had women enslaved, called “servants”. These wives could intimate to their husbands to have children with the servants, then they declared the offspring as their own.

I ended up putting an end to this novel, which I titled The Scarlet Maid, but I suspended his writing several times because the subject seemed to me too implausible. What an idiot I am. Theocratic dictatorships are not confined to the past: there are a number of them today on earth. What will spare this fate in the United States?

Let’s take an example. It’s 2022, and a draft US Supreme Court decision leaked to the press on May 3: Roe v. Wade, jurisprudence in force for fifty years, would be overturned on the grounds that abortion is not cited in the American Constitution and is not “deeply embedded” in “our history and our tradition”. It’s not false. The United States Constitution does not mention women’s reproductive health. To tell the truth, this document makes no mention of women.

Women deprived of legal personality

Women were deliberately excluded from the right to vote. In 1776, the Revolutionary War had one of the slogans “No taxation without representation”, and a government with the consent of the governed was looked upon favorably at the time, but none of this was valid for women. They could not themselves consent to their representation or to their government; any decision passed through their father or husband. Women could not express their consent, nor could they refuse it, because they were deprived of the right to vote.

This situation lasted until 1920, when the Nineteenth Amendment was ratified, which aroused virulent opposition on the grounds that it was unconstitutional in its original version. Again, this is not wrong.

Women have been deprived of legal personality in United States law far longer than they have had rights. If we start going back to constant case law based on the reasoning of Judge Samuel Alito [auteur du projet de décision de la Cour suprême divulgué dans la presse]why not challenge women’s right to vote?

Our body, ourselves

Reproductive health is at the heart of the current uproar, but only one side of the coin is visible: the right not to give birth. This coin has a reverse: the state can also prohibit you from procreating. Buck v. Bell, rendered in 1927 by the Supreme Court, authorized the authorities to sterilize people without their consent.

This decision was overturned by subsequent cases, and state laws permitting mass sterilization campaigns were all repealed, but Buck v. Bell remains. This form of eugenics was once considered progressive, and around 70,000 sterilizations – of both men and women, but mostly women – have taken place in the United States. We deduce that the deep-rooted tradition holds that the reproductive apparatus of women does not belong to the women concerned; it is the sole property of the State.

I see you coming: it’s not about organs, it’s about babies! Which is not without raising some questions. Is an acorn an oak? Is an egg a chicken? When does the fertilized human oocyte become a being or a person in its own right? Our traditions – say those of ancient Greece and Rome, those of the early Christians – are hesitant about this.

At the design? At the heartbeat? At the first kicks? For the most intractable of current anti-abortion activists, it is at conception, that is, according to them, the moment when a cell cluster is endowed with a soul. This opinion is nevertheless based on a religious conviction: the belief in the soul. Not everyone shares this belief. Yet everyone today risks being subjected to laws written by these believers. What is a sin in one specific religious setting is about to be criminalized for all.

A matter of religion

Let’s go back to the First Amendment to the Constitution. “Congress shall make no law affecting the establishment or interdicting the free exercise of any religion, or restricting the freedom of speech or of the press, or the right of the people to assemble peacefully and ‘address petitions to the government for the reparation of the wrongs of which it has to complain.’ The authors of the American Constitution, aware of the murderous religious wars which had torn Europe apart when Protestantism appeared, wished to avoid this pitfall. There would therefore be no state religion. No one could be prevented by the State from practicing the religion of his choice.

Yet it was simple: if you believe that the soul appears at conception, you must abstain from all abortion, because it constitutes a sin in your religion. If it is not part of your beliefs, you must not – according to the Constitution – be constrained by the religious beliefs of others.

On the other hand, if the opinion of Judge Samuel Alito indeed becomes the new constant case law, then the United States will be well on its way to establishing a state religion. There was an official religion in Massachusetts in the 17th century: as a result, the Puritans subjected Quakers to hanging.

Witches at the stake!

The text written by Judge Alito claims to be based on the United States Constitution, but it is based on English case law from the 17th century, a time when beliefs in witchcraft resulted in the death of many innocent women.

The Salem witch trials were indeed trials—judges and jurors—but admitted so-called “spectral” evidence, that is, the idea that a witch could commit her misdeeds through to his possessed double – his ghost. According to this reasoning, even if you were fast asleep (witnesses to back it up), but someone accused you of allegedly abusing a cow miles away, you were guilty of witchcraft. And it was impossible to prove otherwise.

In the same way, it will be very difficult to refute a false accusation of abortion. A miscarriage or the declarations of an ex-spouse will be enough to assimilate you to a murderess. Accusations motivated by revenge and malice will multiply, as will the denunciations of witchcraft five hundred years ago.

If Judge Alito wants to enforce the laws of the 17th century, you would be well advised to study this century carefully. Is this the time you want to live in?

*“I invented Gilead, the Supreme Court is making it real” published in The Atlantic (May 2022) and translated by International mail.

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Margaret Atwood: ‘The Supreme Court wants to enforce 17th century laws’

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