COLUMBUS, Ohio – Critics are blasting Ohio Supreme Court Justice Patrick Fischer, a Republican seeking reelection, for comparing abortion to slavery and segregation in recent remarks before a group of Republicans outside Columbus.
Fischer spoke at the Delaware City Republican Club on July 14 in which he compared Roe v. Wade to a pair of U.S. Supreme Court decisions that upheld slavery and segregation. Cleveland.com/The Plain Dealer obtained a recording of his remarks.
“Ladies and gentlemen, do you know what substantive due process is? It would take me hours to go into it,” he said. “But you know what it’s the basis for? The Dred Scott decision. Not good. It’s the basis for Plessy v. Ferguson. Not good. And it was the basis for Roe v. Wade.”
Although Fischer later said his point wasn’t to compare abortion to slavery or segregation but to question legal underpinnings of those decisions, Republicans across the country have increasingly linked abortion with slavery.
In Ohio, J.D. Vance, the Republican candidate for the U.S. Senate, told the Catholic Current that abortion and slavery were comparable, “and that while the people who obviously suffer the most are those subjected to it, I think it has this morally distorting effect on the entire society.”
Also making the comparison is Steve King, a former congressman from Iowa, and Matt Birk, a former NFL player running for lieutenant governor in Minnesota.
In 2016, writer David French argued in the conservative-leaning National Review that during American slavery, white enslavers treated Blacks as property, and could do “whatever they wanted to that slave, anything that they chose.” When a pregnancy is aborted, the “unborn life,” is treated as similarly expendable, French wrote.
“Ronald Regan did it in 1984,” said Ayesha Bell Hardaway, a Case Western Reserve University law school professor who is co-director of its Social Justice Institute. “It’s gotten a lot of play in Republican politics for quite some time. Obviously (U.S. Supreme Court) Justice (Clarence) Thomas has picked on pieces of it in all of his dissents before Dobbs. It’s not a new thing.”
Dobbs v. Jackson Women’s Health Organization is the June 24 U.S. Supreme Court decision that overturned Roe v. Wade, leaving abortion rights to the states.
By the end of the year, the Ohio General Assembly and Gov. Mike DeWine are expected to push forward a bill generally outlawing abortion in most cases in the state. Fischer’s remarks were in response to an audience member at the Delaware City Republican Club, who asked if abortion rights will be determined by the Ohio Supreme Court next year.
Fischer noted that the state’s judicial conduct rules prevent him from talking directly about cases. The Ohio Supreme Court has an abortion case before it, with abortion rights groups asking the court to overturn the so-called fetal “heartbeat” bill.
However, Fischer did share some thoughts, explaining that when he was dating his wife 38 years ago, he felt the same way: that the legal argument behind Roe v. Wade, known as substantive due process, was weak.
“But I told her that if you ever got enough people with guts, that would theoretically -- on a theory, on a legal theoretical basis -- easily (be) overturned,” said Fischer, who graduated from Harvard Law School with honors.
‘Infantilizes Black people’
The U.S. Supreme Court’s 1857 Dred Scott decision determined that Scott, who lived in a free state, was not entitled to freedom. It also said Blacks were not and never could be U.S. citizens. Legal scholars consider it one of the worst decisions from the U.S. Supreme Court.
Plessy v. Ferguson in 1896 allowed segregation laws in the states, as long as facilities were “separate but equal” for Blacks.
Hardaway said slavery was racist, sexist, inhuman and immoral. Black people were tortured physically, psychologically and spiritually,
“I think it’s troubling that there’s this comparison to a fetus,” she said. “People who were enslaved were actual living, breathing individuals, fully developed and able to make decisions for themselves and were denied the rights to have personal autonomy and self-determination... It infantilizes Black people in an inappropriate and disrespectful way.”
David Pepper, former Ohio Democratic Party chairman who is an attorney and teaches election law at the University of Cincinnati College of Law, noted that public polling shows that a majority of Ohioans want to protect abortion rights.
“They’re grasping at straws to try to justify something that they know is deeply unpopular among mainstream Ohio,” he said. “So this analogizing to slavery, people are grasping at straws to try to explain away something that most Ohioans are still shocked about. This will not dilute the anger people feel about stories like the 10-year-old victim that we’ve al heard about.”
What is substantive due process?
Fischer told the Delaware City Republicans that the U.S. Supreme Court used substantive due process in Dred Scott, Plessy v. Ferguson and Roe v. Wade.
Substantive due process is a legal theory that allows courts to protect rights that aren’t enumerated, or spelled out, in the U.S. Constitution. The doctrine stems from the Fifth and Fourteenth amendments of the U.S. Constitution, which guarantee people “due process of law” before governments can deprive them of life, liberty or property.
Fischer called it controversial. It “gives a blank check to judges that allows them to write policy, which violates the constitutional doctrine of separation of powers,” he said.
“In cases ranging from Dred Scott to the present, some courts have wrongly stretched the due process clause from its original role as an objective and neutral arbiter of fairness to a subjective rubber band that allows judges to substitute their own personal -- often partisan -- policy preferences for those of the people’s elected representatives,” he said in an email. “Abraham Lincoln criticized this policy as it was used in the unscrupulous and racist Dred Scott ruling and, in a recent speech, I criticized the doctrine, too.”
Fischer said he agrees with the opinion of the late justice, Ruth Bader Ginsburg, that Roe would have been on a stronger constitutional footing if the 1973 U.S. Supreme Court would have ruled under a different part of the Fourteenth Amendment, the equal protection clause. Instead of relying on privacy rights through substantive due process, Ginsburg believed it should have been based on gender equality.
Fischer said that he isn’t of the opinion that all U.S. Supreme Court cases decided under substantive due process necessarily need to be thrown out.
He said that he agrees with Justice Brett Kavanaugh’s concurring opinion in the Dobbs abortion decision: “I emphasize what the Court today states: Overruling Roe does not mean the overruling of those precedents, and does not threaten or cast doubt on those precedents.”
The precedents also include Obergefell v. Hodges, the case that originated in Ohio that legalized same-sex marriage, the right to use birth control and the right for interracial couples to marry.
Pepper, the former Ohio Democratic Party chair, said that those rights will also be on the line, based on Fischer’s reasoning about substantive due process.
“Once you’re getting rid of substantive due process, you’re going way beyond the battle of abortion,” he said.
Pepper also said that the Dred Scott case makes a single-sentence reference to substantive due process, of a 450-page decision. He said it was misleading of Fischer to lump Dred Scott in with the other cases.
“I think that’s a manipulation of history, a cynical manipulation of history,” Pepper said.
‘I give him credit for being transparent’
Fischer said that people cannot assume how he would rule on any abortion cases, based on his remarks about a legal theory.
Pepper is not buying it: “I give him credit for being transparent about what he would do.”
The Ohio Code of Judicial Conduct cautions judges about making pledges, promises and commitments, since there’s “the overarching judicial obligation to apply and uphold the law without regard to his or her personal views.”
“Campaigns for judicial office must be conducted differently from campaigns for other offices so as to foster and enhance respect and confidence for the judiciary,” the code states. “Judicial candidates have a special obligation to ensure the judicial system is viewed as fair, impartial, and free from partisanship.”
Catherine Turcer, executive director of the good government group Common Cause Ohio, said that generally, it’s helpful for voters to meet judicial candidates, since so little is known about them.
Fischer faces Ohio 10th District Court of Appeals Judge Terri Jamison, a Democrat, on Nov. 8.
“It is a challenge, because judges and justices also have First Amendment rights. It’s a challenge to not make what you’re saying be a promise,” she said. “The Ohio Code of Judicial Conduct encourages candidates to never make a promise about upcoming cases, or to talk about specifics of upcoming cases. And we can weigh whether or not Justice Fischer was providing too much of a commitment about abortion cases that may and will come before him. But understanding how he looked at substantive due process is interesting.”