Justice Taney and Justice Alito

By David Sole

The right-wing dominated United States Supreme Court is moving to overturn the historic 1973 Roe v Wade decision that recognized a woman’s right to choose abortion. On May 2 a copy of the draft decision in the case of Dobbs v Jackson Women’s Health Organization was leaked and quickly went viral.

This reactionary, but expected, action by the country’s highest court was written by Justice Samuel Alito. One could summarize its impact as “a woman has no rights that a man is obligated to respect.” The National Lawyers Guild issued a warning that

“the draft court opinion itself implies extensive consequences for gay marriage, interracial marriage, and contraception access, all of which were decided on the same basis of a right to privacy. These efforts are not unrelated; they are all part of a coordinated, fascist effort to expand state control over marginalized people’s bodies…”

Alito’s decision brings to mind the repulsive 1857 decision written by U.S. Supreme Court Chief Justice Roger B. Taney, who thought he and his court were securing the slave system and ending any hope of justice for the people stolen into slavery from Africa.

The Supreme Court ruled 7 to 2 in Scott v Sanford that “any person descended from Africans, whether slave or free, is not a citizen of the United States.”  It went on to declare that African Americans “had no rights which the white man was bound to respect.” Taney declared that people of African descent were property and would remain property.

In the chapter called “Race” in  the historic book titled  “The 1619 Project”, Dorothy Roberts describes the issue that arose with the advent of the enslavement of African people in the North American English colonies. She states that in English law of that period, children would have the “status of their white fathers”. But in the enslavers’ minds, according to Roberts, “that would decrease the pool of human beings who could be enslaved.”

So in 1662, the “democratic” Virginia House of Burgesses passed a statute to assert total control of Black women’s bodies by their white male enslavers:

Whereas some doubts have arisen whether children go by any Englishmen upon a negro woman should be slave or free, Be it therefore enacted and declared by this present grand assembly, that all children borne in this country shall be held bond or free only according to the condition of the mother.

Roberts states that this follows the Roman tradition that the offspring of farm animals belong to the owner of the mother.

Of course, this provided a free hand for enslavers to rape “their” enslaved females and then in turn enslave their children, which of course many of the nation’s “founders” did. After  the ending of the slave trade, this became a tool to expand the pool of slaves.

Enslaved women who resisted rape were punished, often put to death. At the same time, marriage between Black and white persons was outlawed North and South, which did not end until 1967.

In 1861, the country was engulfed in the Civil War whose inevitable outcome was the defeat of the slaveholders rebellion. In that struggle the Emancipation Proclamation was issued, and in the years following General Lee’s surrender, the 13, 14 and 15 Amendments to the Constitution were enacted. The 13th abolished slavery; the 14th established citizenship to all born or naturalized in the U.S., addressed equal protection of the law and provided for apportionment for Federal elections. The 15th provided for voting rights for African American men. Of course all these newly enacted “rights” were effectively overturned in practice. Even up to today we are seeing that reactionary forces are still working to undermine and eliminate some of these Constitutional rights.

Overturning Taney’s hateful words did not come from courtroom litigation. It was the result of a mass struggle that cost the lives of an estimated 750,000 soldiers.

There will be many strategies, local and national, to fight back against this assault on women’s rights But that struggle must, and will, become fused with the wider fight against racism, police terror, voter suppression, gender oppression and the rest of the program of the right-wing forces. Ultimately the unified and mobilized masses of poor and working people can only be effective when they see that real progress can only be made if the entire capitalist system is overturned.

Samuel Alito’s name will go down in history, alongside Roger B. Taney’s, for being part of an oppressive system that unleashed a hurricane of resistance and revolution.