Does Bush’s invocation of Dred Scott trump?

During the second presidential debate on Friday night, I could hardly believe my ears when President Bush, upon being asked what sort of Justices he might appoint to the Supreme Court, replied that he wouldn’t pick a judge who would decide another Dred Scott. I was beside myself because not only was Dred Scott decided about 150 years ago, making it practically ancient history, but it has also been overturned by at least three amendments to the U.S. Constitution.

(For those who don’t know, Dred Scott was the decision where Justice Taney in 1857 declared that all blacks, both slave and free, were not and never could become United States citizens. Specifically, because Scott was black, he was not a citizen and had no standing to sue.)

I thought, “why in the world would President Bush use THIS case as an example of the sort of judge he would not appoint?” Thanks to Heidi and, via Heidi, Paperwight’s Fair Shot, I think I now understand. Far from being incredibly uninformed and ridiculous, Bush’s answer was actually quite clever. After reading Heidi’s post and some dissenting language in an abortion decision, I am certain that Bush, by invoking Dred Scott here, was really saying that he intended to install Supreme Court judges who would overturn Roe v. Wade.

Indeed, as noted by Paperwight, pro-life advocates have been comparing Roe v. Wade with Dred Scott for years as an example of abhorrent Supreme Court jurisprudence. Scalia sums up that position nicely in his dissent in Stenberg v. Carhart (where the Supreme Court in 2000 struck down Nebraska’s attempt at a partial birth abortion ban):

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned in its rightful place in the history of this Court’s jurisprudence beside Korematsu and Dred Scott. The method of killing a human child- one cannot even accurately say an entirely unborn human child- proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion . . . The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility, . . . and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Telling, isn’t it? Indeed, as illustrated by the words in this dissent, for legal conservatives Dred Scott has become a sort of code for Roe v. Wade.

So President Bush, in effect, was basically saying that he would appoint judges to the Supreme Court who would overturn Roe v. Wade, which to conservatives represents just such bad jurisprudence as that found in the infamous Dred Scott. President Bush was not just being ignorant in saying that, but was very cleverly submitting a message to his base.

Now, consider this counsel from Elder Oaks regarding abortion:

The Church opposes elective abortion for personal or social convenience. Our members are taught that, subject only to some very rare exceptions, they must not submit to, perform, encourage, pay for[note: didn’t Kerry say in his portion of the debate that he would not hesitate to provide abortions paid for by our tax dollars? And does that constitute Church members “paying for” an abortion?], or arrange for an abortion.

In today’s world we are not true to our teachings if we are merely pro-choice. We must stand up for the right choice. Those who persist in refusing to think beyond slogans and sound bites like pro-choice wander from the goals they pretend to espouse and wind up giving their support to results they might not support if those results were presented without disguise.

. . .

Some Latter-day Saints say they deplore abortion, but they give these exceptional circumstances as a basis for their pro-choice position that the law should allow abortion on demand in all circumstances. Such persons should face the reality that the circumstances described in these three exceptions are extremely rare. For example, conception by incest or rape—the circumstance most commonly cited by those who use exceptions to argue for abortion on demand—is involved in only a tiny minority of abortions. More than 95 percent of the millions of abortions performed each year extinguish the life of a fetus conceived by consensual relations. Thus the effect in over 95 percent of abortions is not to vindicate choice but to avoid its consequences. Using arguments of “choice” to try to justify altering the consequences of choice is a classic case of omitting what the Savior called “the weightier matters of the law.”

. . .

If we say we are anti-abortion in our personal life but pro-choice in public policy, we are saying that we will not use our influence to establish public policies that encourage righteous choices on matters God’s servants have defined as serious sins. I urge Latter-day Saints who have taken that position to ask themselves which other grievous sins should be decriminalized or smiled on by the law due to this theory that persons should not be hampered in their choices.

Dallin H. Oaks, “Weightier Matters”, Ensign 13 (Jan. 2001).

That was a long quote, perhaps too long, and I hope you are still reading. Because Bush as much as said that he would appoint Supreme Court judges who would overturn Roe v. Wade if given the opportunity, and because Senator Kerry basically said that he would allow our tax dollars to fund abortions, I wonder if Elder Oaks counsel makes a compelling case for Latter-day Saints to vote for President Bush in November, despite the other important issues on which President Bush has perhaps failed the country.

And that, people, is my current quandary. Does the mandate to oppose abortion trump other important policy considerations for Latter-day Saints? I personally am one who does not think that President Bush has been terribly effective as President. I think that our country is worse-off than it could be after 9/11 because of his Presidency. Americans need health care and jobs, and the top income earners don’t need a tax break. But I feel very strongly against abortion, against allowing it in this country, and ESPECIALLY against my tax dollars funding such a heinous act.

So which issue trumps?

26 Responses to Does Bush’s invocation of Dred Scott trump?

  1. Anonymous says:

    I’m sure you’ve seen Carey’s post about this issue. I can imagine that this is a horrific choice for you. I have little sympathy for undecided voters whose indecision is rooted in almost anything except moral issues. For those of you who believe firmly that abortion is against God’s commands, I can see where this election poses a serious question.

    The only analogy I could come up with would be if someone were a “Log Cabin Republican” who believed firmly that the war in Iraq (a preemptive strike) was the right thing to do and believes firmly that our economy is moving in the right direction under this presidency (OK, so I know that’s a huge stretch) but nevertheless abhors his stance on introducing an amendment to our Constitution to codify discrimination and permanently ensure certain rights are kept from a class of citizens.

    What dilemmas!

    It is good that in our country we have the ability, nay the right, to have these questions and discussions. I do fear that, at some level, we are separating ourselves into religious (or religion-based) idealogical camps and that we are becoming less united and more divided.

    Good luck with your choice. 

    Posted by Denise

  2. Anonymous says:

    Bush’s Dred Scott comment was clumsy but it carried more meaning than a mere code for Roe v. Wade, in my opinion. In addition to promising justices who would correct the problem of Roe v. Wade Bush’s comment also contained at least two additional points:

    (1) He wouldn’t appoint justices who would use the law to devalue human life (as was the case in Dred Scott);

    (2) He mentioned Dred Scott after first mentioning the Pledge of Allegiance litigation, which represents leftist judicial activism. So by first taking an example of left wing judicial extremism, and then invoking Dred Scott, Bush was also condemning right wing judicial activism.

    I don’t think that Bush was referring to the substance of Dred Scott at all (he knows that the Constitution has been amended to prevent the type of substantive holding of Dred Scott).

    But as to whether it was code for Roe v. Wade, that is very possible. After all, both decisions devalue human life: in Dred Scott blacks were determined to be personal property and thus not citizens; in Roe v. Wade the ontological position of a fetus is questioned and found to be less than human (thus buying into theories that it is some kind of vague reproductive matter–kind of like a cyst or tumor to be excised at the will of the woman it is afflicting).  

    Posted by john fowles

  3. Anonymous says:

    Tough call… 

    Posted by Steve

  4. Anonymous says:

    Also, while surely not a popular point, the Dred Scott decision was legally correct; at least from the viewpoint of those that believe judges should judge; not legislate. While the outcome was morally indefensible (slavery is 100% wrong), judge’s aren’t there to decide legal issues on a moral basis…or at least have the responsibility to turn such choices back where they belong: the executive, the legislature, and The People.

    Of course, the above doesn’t count in Louisiana, where the popular vote was recently annuled by a judge.  

    Posted by lyle

  5. Anonymous says:

    My understanding is that the Church opposes most elective abortions but not all of them. The Church accepts that some elective abortions would be acceptable. And as always, we hear the exceptions in cases such as incest, rape or when the health of the mother is at issue. I suppose we could add to this the situation where ultrasounds reveal that a fetus is developing in an unusually deformed state or in a manner that would ultimately assuredly result in the delivery of a dead baby rather than a live baby.

    My question has always been HOW the Church would like to see this policy legally instutionalized. What practical means would be developed to determine whether a woman’s pregnancy fell under one of the exceptional rules. Would the woman ultimately decide? A lawyer? A judge? What standards of proof would the woman be subjected to in order to determine that her pregnancy fell under one of these exceptions? How difficult would that standard be to meet?

    Try to imagine a girl who is pregnant by incest trying to meet a standard of proof so that she could legally obtain an abortion. How would that work?

    My guess is that ultimately even Church courts in an LDS theocratic state would have to trust the woman’s judgment and decision in the matter. 

    Posted by danithew

  6. Anonymous says:

    I don’t think that’s an automatic trump card. I think what you’ve been told is, “don’t vote for Kerry because he’s pro-choice.” It doesn’t mean you can’t weigh other things that he does. You might decide that abortion’s more important; you might decide that Bush, while philosophically opposed to abortion, would practically be unable to confirm a pro-life justice, and so practically it won’t matter. The point is not: don’t vote for someone who’s pro-choice; it’s don’t vote for someone because they were pro-choice, and if your elected officials are pro-choice, make sure you let them know how you feel. 

    Posted by Heidi

  7. Anonymous says:

    My inclination is to say that the pro-life battle is now unwinnable; if the battle is unwinnable, then the best alternative is to have elected officials who, despite having bought in to the “pro-choice” smokescreen (the real question is whether abortion kills a human being or not), believes tht less abortions are better than more abortions and that abortion is cruel, inhumane, and gruesome. Such a candidate believes that you can’t take away the judicially invented “right to choose” but believes that through education and other programs we can reduce the number of babies killed. That was Kerry’s position in the second debate.

    But when I discussed this surrender of mine with my wife last night, she reminded me what the implications of it are: that my money will fund abortions in the ghetto. I will be paying to kill babies. So there is no way I can brush aside a belief that abortion kills babies out of trust that Kerry will reduce the number of abortions through education because I can’t justify actually paying for the abortions myself. If Kerry would promise that my tax dollars wouldn’t fund abortions, then I would have a much easier time putting aside my reservations about abortion because I would feel that Kerry was educating against abortion (while preserving the absurd “right to choose”) but not making me pay for those women who choose to have an abortion despite Kerry’s attempts at education. 

    Posted by john fowles

  8. Anonymous says:

    I was impressed by President Bush’s “culture of life” answers and thoroughly disappointed by Senator Kerry’s answers. I couldn’t believe that he suggested that not only does a woman have a constitutional right to an abortion but the right to have it paid for if she could not afford one. To me it’s a fairly clear decision but abortion is just part of a very clear decision for me.  

    Posted by David H. Sundwall

  9. Anonymous says:


    You mat find this interesting. 

    Posted by Ebenezer

  10. Anonymous says:

    I was mildly impressed by Bushes answers to the “culture of life” questions as well. It is a real dillema in this day and age, what to do about moral issues…

    On the Dred Scott quote, I present two scenarios. If Bush came up with that refrence, it was his clumsy attempt to reach black voters. If it was Karl Rove or Dick Cheney that had him say it, it may have been a reference to Roe v. Wade. Bush has shown that he is not really savvy when it comes to politics or political matters. As a matter of fact, it really suprised me that he brought up a historical political matter at all.  

    Posted by iancook

  11. Anonymous says:

    In addition to my genuine surprise while listening to the debate that Bush focused on Dred Scott at all, I was embarassed for him in his handling of it. It was very apparent that he isn’t a lawyer or that he doesn’t have much insight into the workings of the law on these issues. He almost misquoted the Constitution immediately after the Dred Scott reference, almost saying that it says that all men are created equal. 

    Posted by john fowles

  12. Anonymous says:


    You’ve lived among Mormons in England (and Germany). From my experience, Mormon political preference in Europe is far, far more diverse than in the US (particularly Utah). In Britain, you’ll find Tories, Greens, Liberals and Blairites at Church on Sunday. All parties in England are pro-choice and therefore for most British Mormons it’s a non-issue. So we vote on issues of foreign policy, education, or social justice.

    It’s a tough one. For me, I really wish Mormons wouldn’t vote on a single issue. Yes, Bush seems to be pro-life, anti-gay marriage and very religious. But, *IMO*, he’s also pro-war and has a lousy record on social justice. So which is preferable? Good luck.

    On the subject of religion, I thought Kerry was so much better than Bush on Wednesday (which came a bit of surprise). I liked his point about looking after your neighbour. For me, it sounded genuine, and I believe social justice is a family value. Bush is an Evangelical and prays a lot. God tells him what to do. That’s all nice and good. I’m sure Allah tells Osama what to do too. Keep religion out of the state! And remember that Bush’s evangelical friends hate Mormons! 

    Posted by Ronan Head

  13. Anonymous says:

    Sorry Jordan, it was your post, not Johns! But everything still applies! 

    Posted by Ronan Head

  14. Anonymous says:

    Thanks for that reminder Ronan. This is going to be a hard decision. I agree fully that Kerry is a better choice on foreign policy, which is something of paramount importance to me personally. I was also pretty impressed about Kerry’s statements about religion, but unfortunately, I doubt his sincerity. Still, why not give him the benefit of the doubt about it? I think it would be unfair not to do so. And I couldn’t agree with you more about Bush’s evangelicals. They are not now nor ever have been friends to the Latter-day Saints. 

    Posted by john fowles

  15. Anonymous says:

    Thanks to all for your comments- they have been enlightening.


    Posted by Jordan

  16. Anonymous says:

    Out of curiousity, John, what is Kerry’s foreign policy? In what ways does it differ significantly than Bush’s? and why do you think it is better? 

    Posted by Ebenezer

  17. Anonymous says:


    You could always take the pragmatic approach. Ultimately, illegal or not, abortion is a personal choice, although the issues surrounding it complicate matters somewhat, given the quesiton of public funding of abortions. So while my vote for a pro-life candidate sends a message that I disapprove of abortion and wish that it were illegal, people can still choose to have abortions, illegal or not, and either way I bear no direct responsibility (although by not speaking up I do bear some responsibility).

    Warmaking power, however, resides in a few elected officials who represent me directly as a citizen of this country. The actions of our elected leaders in executing our foreign policy are actions taken directly on our behalf, and represent in some way our collective will (again, it’s more complex than that, but you get the idea). We have a much greater stake in the moral administration of our foreign affairs.

    Now, normally, the conduct of America’s foreign policy is not such a pressing issue. However, in this election cycle, it is THE issue. Given the direct relationship between my will and the actions taken by our elected officials on my behalf, I think that the possibility for “trumping” exist in spades (so to speak).

    To sum up: no one can choose to have an abortion on my behalf, but someone can choose to prosecute an unjust war on my behalf. 

    Posted by Bryce I

  18. Anonymous says:


    Thanks for providing this reasoned approach. Of course, it assumes that the war in Iraq is indeed unjust, which is a whole other issue.

    Those who support President Bush in invading Iraq would say that regardless of the stated reasons for which we entered Iraq, the war was nonetheless justified because it caused the fall of an evil dictator. That seems a strangely utilitarian notion coming from a camp normally seeming to be grounded in Kantian ethics, however.

    Assuming that I find the war in Iraq to be an unjust war, then why would the same logic you just mentioned in regards to abortion not be applicable to the war in Iraq? Here is what I am thinking:

    Abortion is no longer such a big issue because it has now been the law of the land that women can choose to have abortions. But no one can choose to have an abortion on my (assuming I was a woman) behalf.

    At that point, you (Bryce) reasonably point out that while while noone can choose to have an abortion on behalf of a woman, someone CAN choose to prosecute an unjust war on your (and my) behalf. But the war is already being prosecuted, and Senator Kerry would certainly not abandon ship now and discontinue prosecuting this unjust war. Therefore, whether you vote for President Bush or Senator Kerry, the unjust war will continue to be prosecuted on your behalf.

    If that is the case, how does this issue trump?

    (note: the reply argument I am thinking of would be that President Bush should not be rewarded with four more years for getting us in there in the first place.)  

    Posted by Jordan

  19. Anonymous says:


    I erred in using the word “unjust”, which doesn’t accurately reflect my own personal view of the war and obscures the point I was trying to make (which you seem to have gotten anyway). Just or not, the only people with the authority and power to prosecute the war and to execute the foreign policy of the United States are our elected officials and those appointed by them.

    Just or not, the war in Iraq has been handled poorly, and no one involved in the decision-making process at the highest levels of government has yet been held accountable. Given that these men and women represent me directly (either by election or by appointment), I desire that they account to me what they have done on my behalf. If I believe that the present administration has not acted in good faith with due diligence, and if I believe that a better alternative exists, then I might choose to act on that belief, allowing the issue to trump that of abortion on the grounds stated in my previous post.

    The issue of the initial justification for the war need not enter into the picture, although it might, depending on your view of things. 

    Posted by Bryce I

  20. Anonymous says:

    I think Heidi had it right when she suggested that Elder Oaks means we should not vote for Kerry solely BECAUSE he is pro-choice. We could vote for him, and then if we oppose abortion we could write letters, petition, otherwise influence state and federal legislatures to oppose more abortion-friendly legislation.

    Thanks Bruce- you have given a persuasive argument for why the huge foreign relations issue should trump the seemingly little abortion issue, seeing as abortion is already a right guaranteed as constitutional by the Supreme Court, even if Scalia and his ilk hope that one day the decisions in that line are likely to be as stigmatic as Dred Scott.

    (By the way, what about that? I mean, what about the very likely possibility that the next President will be appointing at least one Supreme Court justice? Remember that the court is very evenly divided on many hot issues these days. One new slightly conservative or liberal voice could tip the scales and make a huge difference- one vote means a lot in these divided decisions. Does the future of Roe-like decisions, as held by the President in his Supreme Court nominees, trump?) 

    Posted by Jordan

  21. Anonymous says:

    I don’t really know the answer to this, but this thread has me wondering. When you talk about government funding of abortion, that wouldn’t include elective abortions would it? I thought medicade covered abortions were only for medically necessary reasons.

    I know many of you will say that doctors will use a hangnail as an excuse for a medical abortion. But if the alternative is that a poor woman (most probably already single mothers), who need an abortion to save their lives would not have access to one. I’m not sure that is a trade off I’d be willing to make.

    Feel free to correct me if I’m wrong.  

    Posted by Lisa

  22. Anonymous says:


    That is a point to consider. I have actually been wondering if and to what extent Medicaid already covers abortions. It turns out that the so-called “Hyde Amendment” restricts funding on abortion to only funding in cases of rape (and I wonder if the rape must actually be proven in a court of law first…) or incest, as well as when a pregnant woman’s life is endangered by a physical disorder, illness, or injury.

    Some states provide funding beyond this constitutionally mandated minimum, others stick to it and provide funding only in these minimal circumstances, and some have to still be forced by the court even to provide this minimum level. Most states only pay for abortions for low-income women in cases of life-endangering circumstances, rape, or incest, as mandated by federal Medicaid law.

    It seems like what Senator Kerry was promising to do was repeal this Hyde amendment to allow broader categories of abortions that can get government funding. But isn’t the Hyde amendment sufficient to allow low-income women access to abortions for severe health problems, and rape or incest?

    (The ACLU does not think so…) 

    Posted by Jordan Fowles

  23. Anonymous says:

    Thanks Jordan, that’s very interseting.  

    Posted by Lisa

  24. Anonymous says:

    Jordan —

    On the Supreme Court: While this is certainly a consideration, I don’t put as much stock in it as some people do. After all, most observers expected there to be some turnover in the current term, and there hasn’t been any. While this does increase the probability that there will be one or more appointments in the next term, the lack of turnover in the past four years illustrates that making decisions based on something that may or may not happen seems to be unwise. Should it be a consideration? Yes. Should it be the overriding concern? No. 

    Posted by Bryce I

  25. Anonymous says:

    “And remember that Bush’s evangelical friends hate Mormons!”

    I am inclined to think that this (1) a base canard and (2) irrelevant if true.

    That’s just me. 

    Posted by Adam Greenwood

  26. Anonymous says:

    From my own experience the good Latter Day Saint woman does not make a decision about an abortion without some very serious council from her Bishop or Stake President. It is a serious thing to take a life which if allowed sufficient time and nourishment would result in the birth of a child. Although the Church has not called abortion murder it is still a very serious decision. 

    Posted by Satisfied

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