Abortion Foes Call Bush’s Dred Scott Reference Perfectly Clear

WASHINGTON —  President Bush left many viewers mystified last week when, answering a question in his debate with Democratic challenger John F. Kerry, he invoked the 1857 Dred Scott decision that upheld slavery.

The answer seemed to be reaching far back in history to answer the question about what kind of Supreme Court justice Bush would appoint. But to Christian conservatives who have long viewed the Scott decision as a parallel to the 1973 Roe vs. Wade ruling legalizing abortion, the president’s historical reference was perfectly logical -- and his message was clear.

Bush, some felt, was giving a subtle nod to the belief of abortion foes, including Supreme Court Justice Antonin Scalia, that just as the high court denied rights to blacks in the Scott case it also shirked the rights of the unborn in Roe, which many conservatives call the Dred Scott case of the modern era.

“It was a poignant moment, a very special gourmet, filet mignon dinner,” said the Rev. Louis P. Sheldon, chairman of the Traditional Values Coalition, a prominent conservative advocacy group based in Washington. “Everyone knows the Dred Scott decision and you don’t have to stretch your mind at all. When he said that, it made it very clear that the ’73 decision was faulty because what it said was that unborn persons in a legal sense have no civil rights.”

Sheldon, who said he confers frequently with Bush and his senior campaign advisors on outreach to religious conservatives, though not in this instance, credited the use of Dred Scott with raising the abortion issue to “a very high level” and “back to the front burner.”

“It didn’t just slip out by accident,” Sheldon said.

Douglas Kmiec, a Pepperdine University constitutional law professor who served as a lawyer in the Reagan and first Bush administrations, said the reference instantly struck him for its appeal to abortion opponents, advocates for judicial restraint and even civil rights advocates who regard the Scott case as the court’s all-time worst moment.

“I thought it had so many constituencies that could applaud that comment; it was one of the most intelligent things that I heard in the debate,” he said.

Bush’s remark Friday came after a questioner in the St. Louis debate -- which occurred just miles from the courthouse where Scott filed his lawsuit seeking his freedom -- asked whom he might appoint to the court should there be a vacancy.

Kerry and other Democrats, looking to mobilize their base, have warned that Bush would fill vacancies with judges who would overturn Roe. Bush has often said that he believes in appointing justices who would not legislate from the bench.

He repeated that refrain Friday night but did not mention abortion in his answer. Instead, he pointed to Dred Scott as an example of a court action he found objectionable, along with another favorite citation of religious conservatives: the 9th Circuit Court of Appeal’s ruling that the reference to God in the Pledge of Allegiance was unconstitutional.

“Another example would be the Dred Scott case, which is where judges years ago said that the Constitution allowed slavery because of personal property rights,” Bush said. “That’s a personal opinion. That’s not what the Constitution says. The Constitution of the United States says we’re all -- you know, it doesn’t say that. It doesn’t speak to the equality of America.”

That answer left many wondering what he meant.

Bush campaign spokesman Scott Stanzel said Tuesday that the president did not intend to draw a parallel between the slavery and abortion cases, but that he was merely giving voters an example of a case in which he felt the court erred.

But Bush has a history of using language with special meaning to religious conservatives, a critical portion of his base that senior strategists have said will assure his reelection only if they turn out in larger numbers than in 2000.

Bush himself is an evangelical Christian, and his speeches are frequently sprinkled with phrases that sound merely poetic to many, but to others sound a more spiritual theme.

His reference in many campaign speeches to his belief in a “culture of life” often draws the loudest applause from his largely conservative audiences.

In his State of the Union this year, he spoke of the nation’s “grace to go on” despite its grief over terrorist attacks, and in a subtle reference to religious texts that refer to divine service as a time “set apart,” he said: “Having come this far, we sense that we live in a time set apart.”

Activists and legal scholars on both sides of the abortion debate said Tuesday they believed the president was sending a signal to that base.

Bush, who opposes abortion, has walked a careful line on the issue in a campaign in which women make up a large portion of undecided voters. Abortion has been overshadowed this year in the culture wars by gay marriage, but activists say it remains a motivating force for many.

Polls show a majority favor abortion rights. Critics say the Dred Scott reference was an attempt by Bush to make his point without alienating moderates who might decide the election.

“The minute he said it, I said to myself, ‘Here he goes,’ ” said Eleanor Smeal, president of the Feminist Majority. “He’s not going to say to anybody that he would pick a Supreme Court justice that’s opposed to Roe vs. Wade because he’s afraid that would cost him. So he’s trying to keep his base riled up in a way that won’t offend moderate women.”

Harvard University law professor Laurence Tribe, a Bush critic who has written extensively about the abortion debate, said Bush was signaling that he believed there was a direct parallel between women who would abort a fetus and slave masters of the 19th century.

Tribe pointed to Scalia’s dissent to a 1992 ruling that upheld Roe, in which the justice drew the parallel. Scalia wrote that both cases focused on issues of “life and death, freedom and subjugation.”

“He’s talking in code, but it’s not obscure code,” Tribe said of Bush. “This has been a fixture in the talking points of the religious right for years.”