A lawyer for Kansas cited the most infamous pro-slavery case in U.S. history to attack abortion

By Patrick Hogan

I am not a lawyer. The only qualification I have when it comes to legal matters is I’ve seen every episode of the original Law and Order and can identify an episode before the opening credits roll. So you can take or leave my legal advice. But I would strongly advise any lawyer seeking to be taken seriously not to base their argument on the most reviled pro-slavery court decision in American history.

Kansas Solicitor General Steven McAllister is probably wishing he had heard that advice a week ago. McAllister in hot water for citing the notorious Dred Scott decision in an anti-abortion legal brief.

The brief was filed over a lawsuit seeking to block a deeply restrictive abortion law passed in 2015. The constitutionality of the law is currently awaiting trial in the state’s Supreme Court, which brings us to McAllister’s brief. It was first noticed on Tuesday by lawyer Elizabeth Wydra.

 The filing was a response to an amicus brief by the American Civil Liberties Union and the Constitutional Accountability Center which defended the idea that the Kansas constitution protects abortion rights.  The brief cited the first section of the Kansas constitution, which echoes the Declaration of Independence, stating that “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.”

McAllister cited the Dred Scott decision in a section arguing that the Declaration of Independence is a nice thing to read but has no legal standing (emphasis added):

Courts across the country have recognized that “[t]he Declaration of Independence is a statement of ideals, not law.” Schifanelli v. U.S. Gov’t, 1988 WL 138496, at *1 (4th Cir. Dec. 22, 1988). See also Swepi, LP v. Mora Cty., N.M., 81 F. Supp. 3d 1075, 1172 (D.N.M. 2015) (same); Minyard v. Walsh, 2014 WL 1029835, at *4 (C.D. Cal. Mar. 17, 2014) (“Claim 4’s assertion of a violation of Plaintiff’s rights to life, liberty and the pursuit of happiness is not cognizable. Those principles, described in the Declaration of Independence, do not guarantee enforceable rights.”); Black v. Simpson, 2008 WL 544458, at *2 (W.D. Ky. Feb. 27, 2008) (“There is no private right of action to enforce the Declaration of Independence.”); Borzych v. Frank, 2006 WL 3254497, at *8 (W.D. Wis. Nov. 9, 2006) (“the Declaration of Independence is not binding law”); Coffey v. United States, 939 F. Supp. 185, 191 (E.D.N.Y.1996) (“While the Declaration of Independence states that all men are endowed certain unalienable rights including ‘Life, Liberty and the pursuit of Happiness,’ it does not grant rights that may be pursued through the judicial system.”). See also Dred Scott v. Sandford, 60 U.S. 393, 407 (1856) (describing the Declaration’s description of unalienable rights as merely “general words used in that memorable instrument” and holding that the Declaration did not have a legally binding effect).

A little history lesson as to why the Supreme Court in 1857 was basically dismissing the Declaration of Independence: Dred Scott was a black man born a slave trying to legally win his freedom. If the Supreme Court had recognized that “all men are created equal,” they would have had to free him. They did not do this.

Historian David Thomas Konig calls it “unquestionably, our court’s worst decision ever.” Needless to say, its enthusiastic usage in a 2016 anti-abortion decision did not last long.

A day after Wydra first tweeted about the brief, Kansas Attorney General Derek Schmidt issued a statement that the response brief was wrongand that his office was withdrawing it, but still maintaining their argument was correct.

“Neither the State nor its attorneys believe or were arguing that Dred Scott was correctly decided,” Schmidt stated. “The unfortunate use of this citation should not distract from the important question the Kansas Supreme Court faces in this case: Whether the Kansas Constitution establishes a state-level right to abortion. The State will continue to argue vigorously that it does not.”

In other words, “Sorry, not sorry.”