Members Only | July 8, 2022 | Reading Time: 5 minutes
Yes, Dred Scott and Dobbs share similarities. No, they are not what the anti-abortionists say they are
A brief history of SCOTUS' worst ruling.
There are many Supreme Court decisions in our history that should be roundly criticized and never used as legitimate precedent.
The decision most often invoked as the worst decision in Supreme Court history is Dred Scott v. Sanford (1857), not only for its extreme racism by removing citizenship from free Black people, but also for its completely bizarre overreach in overturning federal law.
Conservatives have long compared Dred Scott to cases upholding abortion rights, but its historical context has much more in common with Dobbs v. Jackson and the current anti-abortion movement.
Dred Scott v. Sanford was an 1857 case that should have been a simple freedom suit. Dred Scott sued in Missouri for his freedom. His master brought him to the free territories, introducing slavery to them and thus providing Dred Scott with a good case for accessing freedom.
The US had been divided into “free states” and “slave states” since Pennsylvania passed a gradual abolition law in 1780. By 1807, every northern state had one. While they didn’t immediately end slavery, they did restrict new slaves. Some, like Massachusetts and New York, ended slavery immediately through their legislatures and courts.
The only way to enforce certain states and territories to be “free” was to provide freedom for enslaved people brought to them and therefore compel the loss of property for the slave owners who broke the law.
The difference in slavery laws between the north and the south created a deep political sectional divide. The north was not necessarily interested in enforcing the end of slavery nationally, nor were their interests altruistic. However, once northern states were on a path to rely on wage labor and end slavery, political and economic interests were dependent on new territories entering the union as in “free.”
The south wanted new territories to be “slave states” to increase their political power and have the right to bring slaves wherever they needed. Multiple pieces of federal legislation addressed the sectional fights that erupted every time a new territory was considered.
In 1787, the Congress passed the Northwest Ordinance to create the Northwest Territory (from the Ohio River to British North America and the Great Lakes) as a free territory. In an attempt to settle the issue, the Congress passed the Missouri Compromise in 1820. That admitted Missouri as a slave state, Maine as a free state and it used the southern border of Missouri as the demarcation for future slave states.
The compromise didn’t last long. It was effectively repealed by the Kansas-Nebraska Act in 1854, which provided for the issue of slavery to be decided by “popular sovereignty.” The act caused violence and voter intimidation to erupt in skirmishes dubbed “Bleeding Kansas.”
Dred Scott began his freedom suit in 1846 in Missouri after failing to purchase his freedom. He had federal law and years of precedent on his side. Eventually his case made it to the Supreme Court.
By 1857, the country knew that slavery was causing a deep critical rift. Something had to be done to prevent more violence. However, as the crisis grew, the south demanded even more federal protections.
Southern planters saw the writing on the wall. They knew that without stronger protections, slavery would die out. So the federal government began violating the rights of northern states to placate the south.
In 1842, the Supreme Court ruled that Pennsylvania could not protect escaped Black people from being returned to slave states in Prigg v. Pennsylvania. In 1850, the Congress passed a stronger Fugitive Slave Law as part of the Compromise of 1850. Not only were escaped Black people required to be returned, but officials and private citizens were required to cooperate in returning Black people to enslavement.
In deciding Dred Scott, the Supreme Court was under immense pressure to settle the slavery question. Therefore, rather than simply ruling on Dred Scott’s claims to freedom, Chief Justice Roger Taney wrote a sweeping and ridiculous decision, ruling that the Northwest Ordinance was unconstitutional. He obviated the difference between “free states” and “slave state.” He ruled that Black people (free or enslaved) did not have standing to sue as they had no citizenship rights, thus overruling multiple state laws and decades of precedent.
Far from settling the question of slavery, Chief Justice Taney’s opinion likely radicalized Northerners and hastened the Civil War.
While this moment is instructive to our current situation, it is important to emphasize what should be obvious: the rollback of abortion, bodily autonomy and privacy is not comparable to slavery or to the complete removal of citizenship rights from all Black people.
In the 1850s, enslaved people had no privacy, bodily autonomy, reproductive rights or legal protections. Escaped Black people faced increased danger in northern states due to the Fugitive Slave Act. In 1857, they lost all standing to legally challenge their circumstances.
Cis women, trans people, nonwhite people and non-Christians are facing a continuing rollback of our rights by the current court, but the last time I checked, we still retain our legal standing as citizens.
Despite the differences, however, there are similarities between the constitutional mess created by Dred Scott and pro-slavery interests and the constitutional crisis now created by rightwing Christians.
Justice Alito’s opinion for Dobbs is extreme. It overreaches, too. Chief Justice Roberts’ concurring opinion argues for upholding Mississippi’s 15-week abortion ban without endorsing complete abortion bans, personhood and the reversal of privacy rights, as Alito’s majority opinion does.
We are already seeing the disastrous results of this ridiculous opinion with women being denied lifesaving medications for fear they would cause miscarriages (even for women who are not yet pregnant).
States are jumping to upend constitutional laws, as well as basic legal concepts of jurisdiction and legal standing, to reach anti-abortion objectives. Last year, Texas passed a law that allowed civil enforcement of its abortion ban, completely ignoring the way standing works for civil suits, and the Supreme Court allowed it to go into effect!
Anti-abortion politicians are already exploring legal strategies to block people from crossing state lines to access abortion, completely violating constitutional protections for freedom of movement, states rights and jurisdiction considerations (kind of like the legal argle-bargle that once justified extreme fugitive slave laws).
One possibility is the erosion of civil procedure and allow civilian enforcement of the law while another is to repurpose federal laws against crossing state lines for human trafficking to apply to abortion.
Either way rightwing Christians are willing to cause a complete constitutional crisis to reach their cruel anti-abortion objectives.
In 1857, the federal government and Chief Justice Taney grievously miscalculated the sectional divide and northern opposition to slavery.
Rather than giving in to a federal government beholden to slave interests, northerners mobilized to support abolition efforts and to elect a Republican candidate promising to limit slavery’s expansion.
New York, Ohio, New Hampshire, and Massachusetts attempted to pass legislation to protect their Black citizens in response to the Supreme Court’s decision. While the Civil War ended slavery, we are seeing that rightwing Christian men never gave up their desire to enforce their will on the country, especially since abortion became the conservative cause after they lost the battle on segregation.
With our still-intact legal standing, we must fight anti-abortion laws and the will of a rightwing court to protect our constitutional rights.
But, hopefully, without a civil war.
Mia Brett, PhD, is the Editorial Board's legal historian. She lives with her gorgeous dog, Tchotchke. You can find her @queenmab87.