By David Schultz / CounterPunch
Should the US Supreme Court next year overturn Roe v. Wade and limit abortion rights the decision will be the new Dred Scott, damaging both the remaining thread of legitimacy and respect the Court has, as well as propelling American politics into a divide it has not seen since the Civil War.
Dred Scott v. Sanford is the infamous 1857 Supreme Court decision which ruled that an African-American slave taken from slave to free territory in the US was not entitled to his freedom. At issue was the Missouri Compromise, a national law which divided America into free territory in the North, slave for the South when it came to admission for new states. In reaching this conclusion the Supreme Court ruled that the intent of the framers of the Constitution was that persons of African descent could never be citizens, they were simply property of their owners. Therefore any law, such as the Missouri Compromise that rendered individuals such as Dred Scott as free unconstitutionally violated their owners Fifth Amendment property rights.
Chief Justice Taney in writing the opinion defended states’ rights. He declared that issues such as who is a citizen and what rights they have should be left up to the individual states. In reaching this conclusion Taney hoped the Court once and for all resolved the slavery issue. How wrong he was. Less than a year later Abraham Lincoln declared a “House divided against itself cannot stand” and by 1861 the US was involved in a divided Civil War. Dred Scott was not the end, but the final straw in the path to a political crisis the likes of what we have not seen…so far.
Now consider Roe v. Wade, the 1973 Supreme Court decision declaring that women have a right to terminate their pregnancies, at least through viability or the second trimester. In reaching that decision the Court rejected the idea that the fetus was a person with constitutional rights. The Court declared that states may not limit a woman’s right to abortion because it was guaranteed under the US Constitution. Subsequently in 1992 in Planned Parenthood v. Casey the court modified Roe to say that states could regulate abortion so long as they did not place an undue burden on women’s rights. Roe and Casey together protected women’s rights from the political process.
Roe and then Casey have angered Republicans and religious conservatives for nearly 50 years. They have vowed to overturn it and make abortion illegal. For 50 years Republican presidents have appointed Justices such as Clarence Thomas who oppose Roe, and state legislators have repeatedly passed laws limiting abortion rights, while waiting for the right time and Supreme Court composition to overturn Roe. That day may have come. There are now six Justices on the Court who have expressed disagreement with Roe or abortion rights.
The Supreme Court had oral arguments in cases from Texas and Mississippi challenging the core precedent of Roe, with limits on abortions at six and fifteen weeks respectively. All indications are that the Court will at least uphold the Mississippi fifteen-week law, with a strong possibility being that Roe will be overturned. But even if Roe is not officially rejected, the Mississippi decision in Dobbs v. Jackson Women’s Health Organization will open up a new battle ground in abortion rights that parallels Dred Scott.
Consider the possible parallels. Dred Scott and Dobbs would both be cases declaring that the US Constitution does not protect individual rights. In fact, if Dobbs does overturn Roe it would be the only instance in American history where the Supreme Court overturned one of its own precedents in order to limit rights. All other decisions where the Supreme Court has overturned its own past decisions have been when it has expanded and not contracted individual rights.
Both Dred Scott and Dobbs are cases defending states rights. Both Dred Scott and Dobbs are cases that replied on the intent of the Framers. Both Dred Scott and Dobbs are cases that misunderstand the nature of individual rights. Both Dred Scott and Dobbs are cases damaging the legitimacy of the Court for generations.
Dred Scott defended slavery as a states rights matter. In the Dobbs’ oral arguments several Justices said that a issue such as abortion is a contentious matter that the states and the political process and not the courts should resolve. Dred Scott appealed to the intent of the Framers regarding whether African-Americans could be citizens with rights. Justices such as Clarence Thomas have said that abortion rights appear nowhere in the Constitution and effectively there is no evidence that the constitutional Framers would have protected them and therefore Roe as a precedent can be overturned.
Both Dred Scott and Dobbs are cases that simply misunderstand the purpose of individual rights. As Justice Robert Jackson declared in West Virginia v. Barnette when the Court struck down a mandatory Pledge of Allegiance law for public schools: “One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”
The expected Supreme Court exit from protecting abortion rights misses the purpose of the judiciary which is to protect rights against the political process. Its exit will not settle the matter, much in the same way that Dred Scott did not resolve the slavery issue. It will only light a match to a smoldering political problem that could potentially divide the nation in the same way Dred Scott did.
Finally, Dred Scott destroyed the legitimacy of the Court for decades and it ranks among the worst decisions ever issued. It was a blatantly political decision. So too will be the fate of Dobbs.