Women Set to Experience a Degree of Dred Scott

Photograph by Nathaniel St. Clair

In 1857 the Supreme Court decided Dred Scott, a decision that said African Americans were not citizens and therefore had no rights that a white person must respect.

Last night, for the first time in history that anyone can recall, a leaked preliminary Supreme Court decision with respect to completely overturning the 50-year-old precedent of choice for women in Roe v. Wade, if not changed before being issued, will take affect in about two months. Similar to Dred Scott it will say, in essence, women have no rights that a man or the law must respect. It will make no difference if you are the victim of rape or incest you will be forced to give birth. There is even a question among some in the so-called pro-life movement as to even whether the life of the mother should be spared if death is a possibility to save the life of the child.

Americans expect to add human rights, not have them taken away. This is really an attack on the human rights of women period! It says we don’t trust women to make a decision about their bodies and their health. It’s as simple as Republicans don’t believe in equal rights for women. Republicans oppose equal justice under law for women – it’s why a 1976 Hyde Amendment could exist alongside Roe v. Wade. If abortion is legal for everyone and it is then no woman should have been denied equal protection under the law simply because she is poor and must use tax dollars or she is in the military.

Republicans don’t believe in self-determination for women. Republicans don’t believe in bodily integrity for women. Republicans oppose the Equal Rights Amendment. Republicans oppose equal pay for women.

But in spite of it all, women must continue to fight with integrity and go forward with hope, and not backwards in fear. Women must organize a mass march on the Supreme Court and engage in massive non-violent civil disobedience to resist this decision.

Two presidents, who did not receive the most popular votes – George W. Bush in 2000 (-550,000) and Donald J. Trump in 2016 (-2.86 million) – but became president, were able to name five conservative to extreme right-wing judges to the Supreme Court, with the help of the smug, cynical and Machiavellian maneuvering of Senate Majority Leader Mitch McConnell.

If maintained, this preliminary decision will have done away with the legal principle of precedent, stare decisis. When they were before the Senate Judiciary Committee and being confirmed, all of the current Justices swore they believed in and would uphold stare decisis. Were they lying? Did they perjure themselves?

This is not a “one-off” decision, only applicable to abortion. No, the underlying principle of this “fixed,” “contextual” and “originalist” interpretation of the constitution is, if a right was not originally and explicitly in the constitution it is not a right that must be respected as a precedent. We would do well to remember that the rights of African slaves, of Native Americans, of women, on non-property-owning whites were not in the original constitution. Thus, this court can also overturn LGBTQ rights, interracial and same-sex marriage rights and many other individual rights not in the original constitution.

This politicizing of the Supreme Court led to polling that showed trust in the SCOTUS at the beginning of this term was at its lowest point in history. Why is that important? Because the only enforcement mechanism the Court has for its decisions is TRUST, and Donald Trump and Mitch McConnell have so politicized the Court as to reduce trust in the SCOTUS to rubble.

We must not underestimate what is going on in our society. Trust in our institutions – the ability to decipher the truth, to be critical but not totally cynical about the legitimate press, to know that our presidential election in 2020 was free and fair, and to have a general trust in the SCOTUS – is being destroyed. The foundation of fascism is being laid. A president with an authoritarian personality served for four years and is priming the society to run again. Authoritarians are emerging in the Republican Party at every level like rodents.

We must insist on the truth as the foundation of our democracy. We must build our society on the principle of equal protection under the law for all. Full participation in our democracy must be the goal. A house built on the lies of sand and the violence of hatred cannot stand. Our civilized society is at stake. Our very democracy must stand its current testing.

Jesse Jackson is the founder of Rainbow/PUSH.