Op-Ed: Dobbs isn't the first time the Supreme Court took away key rights

The Supreme Court in building in Washington

By Christopher M. Richardson

July 15, 2022 3 AM PT

After the Dobbs decision ended federal protections for abortion, some high-profile responses suggested the ruling marked the first time the Supreme Court rescinded an established fundamental right.

But that is not true for Black Americans. They did gain, then lose, basic rights at the hands of the Supreme Court. It would take decades to get even some of those rights back. Understanding that history may well be key to helping America face another daunting chapter of rights granted then denied.

After the Civil War ended in 1865, during Reconstruction, the United States enacted a series of laws to uplift the close to 4 million formerly enslaved people. The 14th Amendment provided for equal protection under the law and the 15th Amendment granted Black men the right to vote. Congress passed the Civil Rights Act of 1875 that prohibited race discrimination in public accommodations. Black and some white elected officials worked together to secure equality through state and local laws across the South.

Just as these coalitions began to foster change, white Americans in the South began a violent campaign in the late 1860s that overthrew biracial governments, seized power for white Democrats and flouted federal laws related to protecting the rights of Black people.

During the early days of Reconstruction, many of the wealthy white Southerners who were able to seize power adopted what was known as a “cooperationist” approach. They claimed that their violence was intended to end alleged corruption among Black politicians and promised that any restrictions they imposed on Black rights would be limited. But that supposedly moderate view gave way to extreme measures seeking to end all Black participation in political and social life equal to that of white people.

Ultimately, that extremism was empowered by the Supreme Court.

Instead of buttressing newly won rights for Black Americans, the conservative court effectively ended them. In 1876, the court ruled that the 15th Amendment did not grant any individual the right to vote. In a consolidation of five decisions known as the “Civil Rights Cases,” the court in 1883 struck down the 1875 Civil Rights Act and held that the 13th and 14th Amendments did not give Congress the power to outlaw private acts of racial discrimination. Rather, the court reasoned, Black people needed to look to the states for protection. In 1896, the court would endorse outright segregation in Plessy vs. Ferguson.

The effect of this era on Black political representation is undeniable. In 1870, Alonzo J. Ransier — one of the first Black congressmen from South Carolina — became the state’s first elected Black lieutenant governor. As a high-level elected official, he helped secure educational, voting and civil rights for formerly enslaved people. By the time Ransier died in 1882, he was a forgotten street cleaner and most of those hard-earned rights were gone.

The period immediately after the Civil War would see more than a thousand Black elected officials and several Black members of Congress. Yet by 1901, there were no Black members of Congress.

The parallels with abortion rights today are clear: A decades-long assault on previously established rights eroded them to nothing, supported by a conservative Supreme Court.

Black citizens’ rights would only be regained more than 50 years after the Plessy decision, when amid the civil rights movement the Supreme Court ruled segregation to be unconstitutional in Brown vs. Board of Education, and Congress passed the Civil Rights Act of 1964 as well as the Voting Rights Act of 1965.

However, the Black Reconstruction experience suffered from two hurdles that the abortion rights movement may be able to overcome.

First, the Supreme Court’s action on civil rights was met by exhaustion and indifference by white moderates in the 1880s, who effectively gave up after 20 years of attempting to secure Black rights against reactionary white Southerners. That does not have to be the case today. A majority of Americans support at least some abortion access, even in most red states. This level of public support should buttress attempts in Congress to codify Roe vs. Wade. Even if such legislation fails, the effort may avert a loss of interest in the cause and keep it top of mind for a sympathetic public.

Civil rights during and after Reconstruction also faced the hurdle of voter suppression. Paramilitary groups and extremists including the Ku Klux Klan kept Black voters away from the polls. In contrast, while some antiabortion activists have used violence, abortion rights supporters are not systematically disenfranchised as a group. They should use their political power in anti-abortion states to elect representatives who are committed to protecting reproductive choice.

The Supreme Court held that the Dobbs decision focused on abortion and no other rights. Black history with Reconstruction suggests otherwise — and looks to be predictive. Emboldened by the attacks on abortion rights, several conservative politicians have voiced support for a national abortion ban, limits on contraception, recriminalizing gay sex and banning same-sex marriage once more.

All Americans who view an expansion of rights as critical to our republic would be wise to ignore voices feigning moderation from the other side. Reconstruction teaches us that when extremist movements tell you where they are headed, you should believe them. America should not go backwards on rights yet again.

Christopher M. Richardson is a former U.S. diplomat and co-author of “Historical Dictionary of the Civil Rights Movement.”