[ States that deny rights to women are demanding that free states
do their bidding—with the help of courts.]
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WHY IT FEELS LIKE THE 1850S  
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Robert Kuttner
July 21, 2023
The American Prospect
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_ States that deny rights to women are demanding that free states do
their bidding—with the help of courts. _

People demonstrate in Davenport, Iowa, following the Supreme Court
decision to overturn Roe v. Wade, June 26, 2022., Nikos Frazier/Quad
City Times via AP

 

The Fugitive Slave Act was part of the Compromise of 1850, which was
supposed to stave off civil war. The act required that slaves be
returned to their owners, even if they had escaped to a free state.
The act also made the federal government responsible for tracking
down, returning, and punishing escaped slaves.

In the _Dred Scott_ case of 1857, Scott and his wife Harriet sued for
their freedom, on the grounds that they had lived for four years in
Illinois and the Wisconsin Territory, where slaveholders had no
rights. But the Supreme Court, in _Dred Scott v. Sandford
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person of African ancestry had citizenship rights, and thus had no
standing to sue. It took the three Civil War amendments to nullify the
_Dred Scott_ decision and grant African Americans full citizenship.

Does all this sound familiar, with more recent echoes? It sure feels
increasingly like the 1850s, with slave states trying to get free
states to do their bidding and enlisting the federal government to
help.

Last month, the Republican attorneys general of 19 states sent a
letter to President Biden’s HHS Secretary, Xavier Becerra, demanding
access to the medical records of people
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who cross state lines to seek abortions or gender-affirming care. The
Biden administration is not cooperating, but the next step will be
litigation. Given the Supreme Court’s string of decisions depriving
women and people from LGBTQ communities of their rights, this Court
could follow in the footsteps of the 1857 Court upholding the Fugitive
Slave Act and command free states and the federal government to
cooperate.

Meanwhile, taking advantage of the Court’s other recent ruling
banning race-conscious affirmative action programs
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Blum, the plaintiff in that case, has sent a letter to 150 selective
colleges and universities
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warning them not to attempt to achieve diversity goals using proxies
for race such as economic factors and adversity. If they do, Blum has
written, more litigation will follow.

Litigation allows for discovery. Plaintiffs in a new suit could demand
emails and notes of discussion of applicants, which would clearly
reveal attempted work-arounds. Liberals who have comforted themselves
with the idea that economic diversity is an excellent second-best and
valid in its own right could be stymied again.

In the 1850s, abolitionists responded to escalating efforts to extend
slavery to free states, aided by corrupted courts, with acts of civil
disobedience. Under the laws of some states today, a woman who crosses
state lines to seek an abortion is committing civil disobedience—and
remember, the Court in the 2022 _Dobbs
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did not prohibit abortion nationally but left it up to the states.

Soon a university that tests the limits of the Supreme Court’s
affirmative action ruling will also be committing a kind of civil
disobedience. And let’s recall, it took decades of civil
disobedience against unjust laws, led by heroes with names like Rosa
Parks and Martin Luther King Jr., to reverse those laws.

The deepening crisis of the 1850s ended with the election of Lincoln
and the Civil War. Today’s overreach by slave states and far-right
courts does feel like the run-up to a civil war.

The denouement of the crisis of the 2020s will not be a full-on war.
But until either the Democrats gradually win legislative majorities
and appoint new justices to protect rights, or Republicans win
national power and snuff out democracy, we are in for prolonged trench
warfare.

* womens rights
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* republicans
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