Kansas Attorney General Schmidt has apologized for the state’s citation of the infamous Dred Scott decision in support of its argument in an abortion case this week.
Schmidt’s office withdrew the filing Wednesday afternoon and issued a statement in which he apologized for the citation of the 1857 case, which found that black people were not entitled to U.S. citizenship.
“Neither the State nor its attorneys believe or were arguing that Dred Scott was correctly decided,” Schmidt said in a statement. “Nonetheless, the reference to that case was obviously inappropriate, and as soon as I became aware of it today, I ordered the State’s brief withdrawn.”
The state’s filing, submitted to the Kansas Supreme Court on Tuesday, came as a response to an amicus brief filed by the American Civil Liberties Union in a case that will determine whether the Kansas Constitution guarantees a right to abortion under its equal rights provision.
A Shawnee County judge ruled in 2015 that the state’s constitution does include an implicit right to abortion. The Kansas Court of Appeals upheld that ruling with a split decision this year. The state Supreme Court has yet to rule on the matter.
The ACLU had argued that the Kansas Constitution’s equal rights provision, adopted in 1859, should be interpreted similarly to the 14th Amendment to the U.S. Constitution, which guarantees equal protection under the law. That amendment served as the basis for the U.S. Supreme Court’s Roe v. Wade decision that affirmed abortion as a constitutional right under U.S. law.
The state disputed that in a 14-page filing, contending that the equal rights provision was inspired by the Declaration of Independence and should be interpreted similarly as a statement of ideals rather than as a document of law.
Citing of historical case
To support its contention, the state’s attorneys cited seven cases in which the Declaration was found to have no legal effect. Most of those cases were from the past 30 years, but one was from 1857: the Dred Scott decision, which is often referred to as the worst ruling in the U.S. Supreme Court’s history.
In that case, the U.S. Supreme Court ruled that a black person whose ancestors were sold as slaves could not be a U.S. citizen and therefore had no standing in federal court regardless of whether he was free. The controversy over the case, which centered on whether Scott was entitled to freedom after moving to a free state, served as a catalyst for the Civil War.
When I saw the table of cases, when I just started scrolling through it, I thought, ‘What? Really?’
Doug Bonney, Kansas ACLU
Attorneys for Kansas argued in the 2016 abortion case that the 1857 decision showed “the Declaration’s description of unalienable rights as merely ‘general words used in that memorable instrument’ ” and “that the Declaration did not have a legally binding effect.”
The state went on to argue that though “a number of states had adopted ‘inalienable rights’ clauses into their state constitutions by the close of the Civil War, the purpose of such clauses was to voice support for equal rights, regardless of race or minority status – not to create repositories for amorphous, yet-to-be-conceived substantive rights.”
The citation drew criticism from attorneys and activists on social media. The legal blog Above the Law mocked the filing in a post Wednesday.
“Yep. That is what Dred Scott said. But I’ll let you in on a little secret: Justice Taney is the bad guy. Yeah. See, these quotes were expressly intended to justify the enslavement of human beings,” Joe Patrice wrote for the blog. “If anything, this citation makes reasonable people think, ‘hmmm … maybe unalienable rights shouldn’t be mere puffery!’”
In his statement Wednesday afternoon, Schmidt said: “Yesterday’s reference to Dred Scott in a State’s response brief does not accurately reflect the State’s position, is not necessary for the State’s legal argument, and should not have been made.”
“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.”
Doug Bonney, chief counsel for the Kansas chapter of the ACLU, called the state’s decision to cite the Dred Scott decision unusual.
“When I saw the table of cases, when I just started scrolling through it, I thought, ‘What? Really?’ ” Bonney said.
The argument that the equal rights provision in the state constitution “has no legal effect, I think, is contrary to Kansas law and Kansas interpretations of the constitution that have been long-standing,” Bonney said.
Although the equal rights provision was inspired by the Declaration of Independence, the fact that Kansas included that language in its constitution, a set of laws, made that language legally binding, he said.
Bonney noted that the state was under no requirement to respond to his organization’s amicus brief in the first place since the ACLU is not a party to the case. Amicus briefs are considered purely advisory.
“Frankly, I’ve never seen anybody reply to an amicus brief,” Bonney said. “I guess ours was so great that they felt the need to reply.”