Dred Scott and its uncanny parallels to Roe v. Wade: reflections on an anniversary

By Dave Andrusko

I was so busy putting the finishing touches on the March digital edition of National Right to Life News last week that I neglected to write about something that took place last Friday and about which I think about every year: the 163rd anniversary of the day the Supreme Court handed down its awful Dred Scott v. Sanford decision.

 A while back, writing in POLITICO, Andrew Glass observed

On this day in 1857, the U.S. Supreme Court ruled 7 to 2 that all African Americans living in the United States — slaves as well as free persons — could never become citizens. It also invalidated the Missouri Compromise of 1820, thereby permitting slavery in every federal territory. 

Likewise, Roe v. Wade–to which pro-lifers rightly compare Dred Scott–permitted unlimited abortion in all 50 states. And just as Dred Scott “inflamed passions,” so did Roe v. Wade

Note to newcomers: the High Court’s vote in Dred Scott was 7-2 as was Roe v. Wade. And just as Justices Byron White and William Rehnquist eloquently dissented in Roe, so, too, did two Justices– John McLean  and Benjamin R. Curtis –passionately dissent in Dred Scott.

Interestingly, as Glass writes, Justice Curtis “undercut most of Taney’s historical arguments, showing that African-Americans had voted in several states when the nation was founded.” 

The dissenting justices in Roe (and its companion case, Doe v. Bolton) did not do an historical inventory of Justice Blackmun’s historically misdirected adventure, but critic after critic (including numerous pro-choice academicians) did so, particularly Villanova law professor Joseph W. Dellapenna. 

As the late Prof. John Hart Ely wrote in his famous critique, “The Wages of Crying Wolf: A Comment on Roe v. Wade,” Roe is “bad constitutional law, or rather … it is not constitutional law and gives almost no sense of an obligation to try to be.” 

Each time the anniversary of Dred Scott comes around, I think of President Ronald Reagan’s analogy in his book, Abortion and the Conscience of a Nation:

Despite the formidable obstacles before us, we must not lose heart. This is not the first time our country has been divided by a Supreme Court decision that denied the value of certain human lives. The Dred Scott decision of 1857 was not overturned in a day, or a year, or even a decade. At first, only a minority of Americans recognized and deplored the moral crisis brought about by denying the full humanity of our black brothers and sisters; but that minority persisted in their vision and finally prevailed. They did it by appealing to the hearts and minds of their countrymen, to the truth of human dignity under God.

From their example, we know that respect for the sacred value of human life is too deeply engrained in the hearts of our people to remain forever suppressed. But the great majority of the American people have not yet made their voices heard, and we cannot expect them to—any more than the public voice arose against slavery—until the issue is clearly framed and presented.

It was one of the signature triumphs of his two terms in office that President Reagan help to clearly frame and present the issue: “to reaffirm the sanctity of human life, even the smallest and the youngest and the most defenseless.”

Final thought. Once, when I was looking for a particular quote, I ran across a law review article written by an eloquent pro-abortion advocate (eloquent in this piece at least). Dahlia Lithwick wrote

To read the daily pro-life press [she cites a story in NRL News Today] is to experience Roe as an ongoing visceral assault on basic morality, a living, breathing judicial sin as grievous today as it was in 1973.

Yes, we oppose Roe because it was/is a judicial monstrosity, spun out of penumbras and emanations and held together by Justice Harry Blackmun’s chutzpah. Yes, we most assuredly agree that killing helpless unborn children is a sin, both in a strictly religious sense but also a secular sense.

We also agree with the late Malcolm Muggeridge, who succinctly summarized the equality-of-life ethic that undergirds our Movement: “Either life is always and in all circumstances sacred, or intrinsically of no account; it is inconceivable that it should be in some cases the one, and in some the other.”

Pro-abortionists believe in sliding scales. We don’t.

To return to President Reagan’s book, let me conclude this reflection two days late on the anniversary of Dred Scott v. Sanford with the President’s final paragraph:

Abraham Lincoln recognized that we could not survive as a free land when some men could decide that others were not fit to be free and should therefore be slaves. Likewise, we cannot survive as a free nation when some men decide that others are not fit to live and should be abandoned to abortion or infanticide. My Administration is dedicated to the preservation of America as a free land, and there is no cause more important for preserving that freedom than affirming the transcendent right to life of all human beings, the right without which no other rights have any meaning.

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