How Roe v. Wade opponents appropriated Thurgood Marshall

Published on: July 04, 2022 6:00 AM EDT

Friday McCray of Baltimore at the rally protesting the overturing of Roe V. Wade at the federal courthouse in Baltimore.

Those of us who abhor the Supreme Court’s decision to eliminate a right that the Constitution had supposedly bestowed upon us can learn a thing or two from the victors. Like them or not, these are stalwarts who for years have single-mindedly appropriated the playbook that Thurgood Marshall and his cohorts created to strike down segregation.

Marshall rolled out that strategy of social engineering in the 1930s with the support of the Baltimore chapter of the NAACP to challenge the University of Maryland Law School’s refusal to admit Black students.

The thing is this: What these movements accomplished on major societal issues over decades can be replicated on a more local level to reshape Baltimore. At present, too many people grumble and abandon a city they deem irredeemable, or they grumble while remaining here, resigned to a status quo that satisfies no one. What if more of us put our heads, hearts and resources into reimagining our Baltimore and then doing whatever it takes to bring that city into being?

I was disgusted back in 1984 when, as a New York Times correspondent, I spent time at a gathering of mostly white anti-abortion activists, scholars and litigators who convened in Chicago to plot adapting the NAACP strategy. This was during the so-called Reagan Revolution, when conservative views gained a firm foothold. Of course, what these conservatives saw as a nation on a wrong path was is the one in which Black people, women and other marginalized people were beginning to flex their muscles through law and through legislation.

These conservatives not only wanted to turn back time, but to do so by following a strategy developed at Howard University Law School by its dean, Charles Hamilton Houston, whose most famous acolyte was Baltimore’s own Thurgood Marshall. Houston set his eyes on obtaining equal educational opportunities for Black people, outcasts in a nation dedicated to separation of races.

For Marshall and the NAACP, the problematic case to be overturned was Plessy v. Ferguson, decided in 1896 by a majority that sanctioned government-sponsored segregation so long as racially separated facilities were equal. For the anti-abortionists, the problematic case to be overthrown was Roe v. Wade, decided in 1973 by a majority that said that a right to privacy inherent in the Constitution gave autonomy to women in making decisions about abortion up until a certain point in their pregnancies.

The anti-abortionists at that Chicago strategy session lauded what they saw as the NAACP’s “siege leading to erosion, then collapse” of Plessy. A University of California law professor said: “Essentially, that strategy was one of gradualism, taking the easiest, most outrageous cases first, dealing with segregation at the graduate school level, then with segregation at the law-school level, piercing the fraud that there were separate but equal facilities there and eventually, step by step, getting the judges and the country to see that separate but equal was a fraud everywhere. That is the pattern that beckons to this movement.”

So those assembled plotted ways to prioritize the order in which to tackle issues, to lobby state legislatures to begin to whittle away at the right granted in Roe, and to choose the courts in which to file cases based on a likelihood of winning.

Over time, I came to appreciate the commitment and the willingness to stay focused on the prize. You see, those carefully cultivated low-level judges and city council members grew up to become federal judges and federal legislators. Policy wonks and marketing gurus developed digestible talking points that could be disseminated through talk radio and conservative news media. Nothing comparable was being done as effectively by the other side — whether called the Democrats, the left or progressives.

And then, voila! When an opportunist who previously supported Roe calculated that he would win more votes by opposing it, he promised to appoint judges to the Supreme Court who would overturn it. He could draw from a list of judicial candidates pre-approved by The Federalist Society, a group of conservatives and libertarians with outsized influence since the Reagan years. No one can credibly claim, as some senators are, that they were “misled” by assurances from Donald Trump’s appointees — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — that Roe was settled law. After all, they had been on that list.

We must take the long view on what we want this nation to be. Justice Clarence Thomas is already doing just that. He reasons that the same rationale that the majority used to overturn Roe could also be used to revisit decisions that gave us contraceptives, interracial marriage, same-sex marriage, and freedom from government oversight of sexual acts among consenting adults.

As with these national issues, we must also take a long view about this city.

There are so many ways to pursue our individual visions of a future by banding together with others. The election season is underway, so a starting point is studying the candidates and their records. The Banner’s voter guide and the profiles of gubernatorial candidates by Pamela Wood are great resources.

Just as critical as who holds office are less visible efforts to reshape the way the city looks and the way it operates — and who it embraces. There are plans for just about everything you can imagine — and they’re not being drawn up by masters of the universe. There is no Wizard of Oz; there are many wizards called “us.”

The truth is that there is a place for all of our voices in plans for the city. The transportation folks, for instance, are working to “change the transportation landscape of the city.” They want our input. The climate change folks, using 2007 as a baseline, want to achieve “a 30% reduction in carbon emissions by 2025, a 60% reduction by 2030, and full carbon neutrality — or 100% reduction in net emissions by 2045.” They want to hear our ideas. Mayor Scott has released “Baltimore Together,” an ambitious plan for “inclusive prosperity.” He wants many more than the 300 people and organizations who devised this blueprint to have a say in its adoption and implementation.

Among the many existing plans and plans-in-progress, the one that strikes me as worthy of more attention is one that a team began undertaking a few months ago in response to the 2020 census. When finalized next year, it will be the municipal planning bible for the next 10 years. The process starts with this question to folks like you and me: How can we work together to make Baltimore a great place to live so residents will:

  • Want to stay
  • Benefit from staying
  • Invite their friends to live [here]?

I am positive that there are as many ideas about that as there are people still living in a city that, for more than half a century, has seen itself shrink to nearly half of its peak population. Now is the time to do something with those ideas — from development, to adoption, to implementation. That means many meetings and multiple election cycles. That means commitment to a goal.

Charles Hamilton Houston himself said, “All our struggles must tie in together and support one another … We must remain on the alert and push the struggle farther with all our might.”

That’s not a bad lesson to take away from what we’ve just seen happen at the Supreme Court.

E.R. Shipp is a veteran journalist and Pulitzer Prize-winning columnist who has held staff positions at the New York Times, New York Daily News and The Washington Post. She is currently an associate professor at Morgan State University.

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