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Why the potential of overturning Roe v. Wade follows Dred Scott decision to remove constitutional rights

News broke on May 2 of a leaked draft of what appears to be Supreme Court Justice Samuel Alito’s majority decision overturning Roe v. Wade, the 1973 Supreme Court decision establishing access to abortion as a constitutional right.

That news is an alarm like the 1857 Dred Scott v. Sandford decision declaring both that Black Americans had no rights that a White man was bound to respect and that Congress had no power to prohibit human enslavement in the territories. The Dred Scott decision left the question of enslavement not to the national majority, which wanted to prohibit it from western lands, but to state and territorial legislatures that limited voting to White men.

According to law professor and legal commentator Neal Katyal, the draft appears to be genuine and shows that in a preliminary vote, a majority of the court agreed to overturn Roe v. Wade. It takes a hard-line position, saying that states can criminalize abortion with no exceptions for rape and incest.

This is a draft and could change before actually being handed down, but it has already stirred a backlash. As soon as the draft hit Politico, which published it, security put up fences around the Supreme Court in expectation of protesters and counter-protesters.

We are in a weird moment, in which Democrats are trying to shore up democracy while Republicans are actively working to undermine it. House Speaker Nancy Pelosi (D-CA) and Senate Majority Leader Chuck Schumer (D-NY) issued a statement after the draft leaked, calling the draft “one of the worst and most damaging decisions in modern history.”

They noted that the justices lied to senators to get confirmed, saying they considered Roe v. Wade settled law, and are now — if the draft is confirmed — stripping away from American women a constitutional right they have held for 50 years.

“The party of Lincoln and Eisenhower has now completely devolved into the party of Trump,” Pelosi and Schumer wrote. “Every Republican Senator who supported Senator McConnell and voted for Trump Justices pretending that this day would never come will now have to explain themselves to the American people.”

And so here we are. A minority, placed in control of the U.S. Supreme Court by a president who received a minority of the popular vote and then, when he lost reelection, tried to overturn our democracy, is explicitly taking away a constitutional right that has been protected for fifty years.

Its attack on federal protection of civil rights applies not just to abortion, but to all the protections put in place since World War II: the right to use birth control, marry whomever you wish, live in desegregated spaces, and so on.

The draft opinion says the state legislatures are the true heart of our democracy and that they alone should determine abortion laws in the states. But Republican-dominated legislatures have also curtailed the right to vote. When Democrats in Congress tried to protect voting rights, Senate Republicans killed it with the filibuster.

The news is an alarm like the 1857 Dred Scott decision, which gave a few White men who controlled state legislatures power over the American majority.

In 1985, President Ronald Reagan’s team made a conscious effort to bring evangelicals and social conservatives into the voting base of the Republican Party. The Republicans’ tax cuts and deregulation had not created the prosperity party leaders had promised, and they were keenly aware that their policies might well not survive the upcoming 1986 midterm elections. To find new voters, they turned to religious groups that had previously shunned politics.

“Traditional Republican business groups can provide the resources,” political operative Grover Norquist explained, “but these groups can provide the votes.” To keep that base riled up, the Republican Party swung behind efforts to take away women’s constitutional right to abortion, which the Supreme Court had recognized by a vote of 7–2 in its 1973 Roe v. Wade decision and then reaffirmed in 1992 in Planned Parenthood v. Casey.

Although even as recently as last week, only about 28% of Americans wanted Roe v. Wade overturned, Republicans continued to promise their base that they would see that decision destroyed. Indeed, the recognition that evangelical voters would turn out to win a Supreme Court seat might have been one of the reasons then–Senate majority leader Mitch McConnell refused to hold hearings for then-president Barack Obama’s nominee for the Supreme Court, Merrick Garland. Leaving that seat empty was a tangible prize to turn those voters out behind Donald Trump, whose personal history of divorces and sexual assault was not necessarily attractive to evangelicals, in 2016.

But, politically, the Republicans could not actually do what they promised: not only is Roe v. Wade popular, but also it recognizes a constitutional right that Americans have assumed for almost 50 years. The Supreme Court has never taken away a constitutional right, and politicians rightly feared what would happen if they attacked that fundamental right.

The leaked draft of a Supreme Court decision, written by Justice Samuel Alito, revealed that the court likely intends to overturn Roe v. Wade, taking away a woman’s constitutional right to reproductive choice. In the decision, Alito declared that what Americans want does not matter: “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work,” he wrote.

Democrats are outraged; so are the many Republican voters who dismissed Democratic alarms about the antiabortion justices Trump was putting on the court because they believed Republican assurances that the Supreme Court justices nominated by Republican presidents and confirmed with Republican votes would honor precedent and leave Roe v. Wade alone.

Clips of nomination hearings circulated in which Justices Amy Coney Barrett, Brett Kavanaugh, Neil Gorsuch, Clarence Thomas, and even Samuel Alito – the presumed majority in favor of overturning Roe v. Wade — assured the members of the Senate Judiciary Committee that they considered Roe v. Wade and the 1992 Planned Parenthood v. Casey decision upholding Roe settled law and had no agenda to challenge them.

Those statements were made under oath by those seeking confirmation to our highest judicial body, and they now appear to have been misleading, at best. In addition, the decision itself is full of right-wing talking points and such poor history that historians have spent the day explaining the actual history of abortion in the United States.

This sloppiness suggests that the decision — should it be handed down in its current state — is politically motivated. And in a Pew poll conducted in February, 84% of Americans said they believed that justices should not bring their political views into their decision making.

Senator Susan Collins (R-ME) and Senator Lisa Murkowski (R-AK) provided key votes for Trump’s nominees and are now on the defensive. Collins publicly defended her votes for both Gorsuch and Kavanaugh around the time of their confirmation, saying she did not believe they would overturn Roe. She noted that Gorsuch was a co-author of “a whole book” on the importance of precedent, and that she had “full confidence” that Kavanaugh would not try to overturn Roe. Murkowski voted to confirm Gorsuch and Barrett.

Collins today said: “If this leaked draft opinion is the final decision and this reporting is accurate, it would be completely inconsistent with what Justice Gorsuch and Justice Kavanaugh said in their hearings and in our meetings in my office.” Like Collins, Murkowski noted that the final decision could change, but ‘if it goes in the direction that this leaked copy has indicated, I will just tell you that it rocks my confidence in the court right now.” The draft is not going in “the direction that I believed that the court would take based on statements that have been made about Roe being settled and being precedent.”

Washington Post columnist Jennifer Rubin suggested that the Senate Judiciary Committee should hold hearings on whether the justices lied in their confirmation hearings, and call Senators Collins and Murkowski as witnesses.

This apparent shift from what they had promised is a searing blow at the legitimacy of the Supreme Court, which was already staggering under the reality that three of the current justices were nominated by Donald Trump, who lost the popular vote and then tried to destroy our democracy; two were nominated by George W. Bush, who also lost the popular vote in his first term; and one other is married to someone who supported the January 6 insurrection and yet refused to recuse himself from at least one case in which she might be implicated.

Republicans tried to turn this story into one about the leak of the draft document, which is indeed a rare occurrence – although not unprecedented, rather than the decision itself. Senate minority leader Mitch McConnell (R-KY) blamed the leaker for attacking the legitimacy of the court, although McConnell’s refusal in 2016 to hold hearings for Obama’s Supreme Court nominee on the grounds that eight months was too close to an election to confirm a justice before shoving Barrett through in October 2020 when balloting was already underway arguably did more to undermine the court’s legitimacy. Echoing him, one commentator said the draft leak was worse than the January 6 insurrection.

But while McConnell and the right wing are implying that a liberal justice’s office leaked the draft, there is no evidence either way. Observers note, in fact, that the leak would help the right wing more than the dissenters, since it would likely lock in votes. Those trying to blame the liberal justices did not comment on an apparent leak from Chief Justice Roberts’s office that suggested he wanted a more moderate decision. Jennifer Rubin suggested calling the bluff of those blaming the liberal justices: she proposed agreeing that whichever office leaked the draft ought to recuse from the final decision.

Republican politicians have largely stayed silent on the draft decision itself, but the reaction of Nevada Republican Adam Laxalt, who is running for Senate, suggested the pretzel Republican politicians are going to tie themselves into in order to play to the base without alienating the majority. Laxalt issued a statement on Twitter that said the leaked draft represented a “historic victory for the sanctity of life,” but also said that since abortion is legal in Nevada, “no matter the Court’s ultimate decision on Roe, it is currently settled law in our state.”

Democrats, though, are not only defending the constitutional right recognized by Roe v. Wade, but also calling attention to the draft’s statement that the Fourteenth Amendment under which the Supreme Court has protected civil rights since the 1950s can cover only rights that are “deeply rooted in this Nation’s history and tradition.”

It seems likely that the right-wing justices, who are demonstrating their radicalism by overturning a 50-year precedent, are prepared to undermine a wide range of constitutional rights on the grounds — however inaccurate — that those rights are not deeply rooted in the justices’ own version of this nation’s history and tradition.

Protesters turned out in front of the Supreme Court and across the country today vowing that women will not go backward. As actress Ashley Nicole Black tweeted: “There’s a particular slap to the face of being told we can vote for abortion rights, by the court that gutted voting rights.”

Lеаh Mіllіs / Pool and Library of Congress

Letters from an Аmerican is a daily email newsletter written by Heather Cox Richardson, about the history behind today’s politics

About The Author

Heather Cox Richardson

Dr. Heather Cox Richardson is a political historian who uses facts and history to make observations about contemporary American politics. Her new book, How the South Won the Civil War: Oligarchy, Democracy, and the Continuing Fight for the Soul of America, is thought-provoking study of the centuries-spanning battle between oligarchy and equality in America.