February 2022 Bar Bulletin
In 1857, Oscar J.E. Stuart, a lawyer and planter from Holmesville, Mississippi, wrote to the Secretary of the Interior Jacob Thompson asking whether he could obtain a patent for a “double plow and scraper,” which allowed farmers to plow and scrape both sides of a row of cotton simultaneously.1 Secretary Thompson forwarded the question to the Attorney General who refused to issue an opinion until the Patent Office received an application for the invention. Thus, Stuart filed the application on November 15, 1857.2
The then-Commissioner of Patents, Joseph Holt, denied the application. There has been much discussion in the lay press about the uncertainty introduced into the U.S. patent system by Alice Corp. Pty. Ltd. v. CLS Bank Int’l. and the rise of post-grant proceedings. But Stuart’s application was not denied because it was directed to an abstract idea, law of nature, or a natural phenomenon. Nor was the application rejected because it was not novel or was obvious in light of what was known to the public. Instead, Commissioner Holt returned the application because the inventor of the double plow and scraper that Stuart wanted to patent, a person we only know by his first name (Ned), was a slave. As Commissioner Holt so bluntly explained: “before the Office has authority under the law, to consider an application for letters Patent, it is required, that the applicant shall make oath or affirmation of Citizenship; and as the laws of the United States do not recognize slaves as Citizens it is impossible for the negro slave “Ned” to bring his application before the Office in such form as would entitle it to examination. The papers are herewith returned.”3
Commissioner Holt’s analysis was undoubtedly based on the Supreme Court’s decision in Scott v. Sandford that African Americans could not be citizens of the United States and thus had no standing to sue in federal court.4 The Supreme Court reached that horrendous decision — the echoes of which continue to roil society today — in part based on two sections of the U.S. Constitution. First, a limitation on Congress’s power to prohibit slavery until at least 1808.5 And second, a pledge among the states “to each other to maintain the right of property of the master, by delivering up to him any slave who may have escaped from his service, and be found within their respective territories.”6
The far-reaching consequence of the Dred Scott decision have been studied, analyzed, and written about by those far more knowledgeable and erudite than me. Others have also studied and written poignantly about the effects of the “Invention of a Slave” opinion on patenting by Black inventors in ways that I can never do justice.7 Instead, I want to take this opportunity to speak out against a likely decision by the Supreme Court of the United States, the unquestionable injustice it will visit upon women, and to encourage you to remain vigilant and speak up against such similar erosion of other civil rights in the not-too-distant future.
Many of you, no doubt, recall the logical fallacy of pro hoc ergo propter hoc and probably have memories of your favorite professor in law school drilling into your mind that “correlation does not indicate causation.” Indeed, many of you are well aware that double-blind test and randomized controlled trials are likely the only absolute proof of causation. When it comes to abortion rights, however, we are fortunate to have a plethora of rigorously-proven natural experiments to show the effect of the right to choose on women and especially young women and women of color. Among some of the incontrovertible data are the following:
• Legalization of abortion reduced teen motherhood by 34% and reduced teen marriage by 20%.8
• A 28 to 40% decrease in maternal mortality for Black women and a 22–24% increase in the probability that Black teenage women graduated high school and a 23–27% increase in their likelihood of receiving a college degree.9
• An 11% increase in hourly wages during their career among young women who utilized legal abortion to postpone childbirth by just one year.10
• Access to legal abortions increased the probability that young women who experienced an unintended pregnancy would finish college by 20% and increased the probability that they would enter a professional occupation by 40%.11
• According to at least one study, the long-term “financial effects of being denied an abortion are thus as large or larger than those of being evicted, losing health insurance, being hospitalized, or being exposed to flooding due to a hurricane.”12
Indeed, access to legal abortion has had a much more significant effect on crime than the “tough on crime” policies that have been shown over and over again to perpetuate systemic racism.13
Yet despite these well-understood and overwhelming data regarding the salubrious effect of allowing women the choice to end an unintended pregnancy, it is almost certain that very soon the U.S. Supreme Court will significantly curtail access to abortion, which will have an extraordinary effect on women who are facing financial hardships and women of color. It is particularly galling and depressing that during a moment in this country’s history when people are more divided than ever, the Supreme Court will likely base its decision on states’ rights and the Constitution being “silent and, therefore, neutral on the question of abortion.”14
Roe v. Wade was decided in 1973 and affirmed in Planned Parenthood v. Casey in 1992. Despite the Justices’ prompting the petitioner to argue that their ignoring stare decisis and overturning — for all intents and purposes — Roe and Casey would have no effect on other similar decisions, it is worth noting that Loving v. Virginia was decided a scant six years before Roe, Lawrence v. Texas was decided in 2003, and Obergefell v. Hodges as recently as 2015. If the notion of states’ rights and the Constitution’s neutrality on individual rights championed by some of the justices during oral argument in Dobbs prevail, it does not take much imagination to conceive of a country in which some states revert to banning interracial marriage, others ban marriage between persons of the same sex, and yet others criminalize homosexuality. Arguments that such outcomes are impossible in light of the full faith and credit clause of the Constitution ring hollow when one recognizes that at the time Loving v. Virginia was decided, Virginia was only one of 16 states that prohibited interracial marriage and it was as recently as 1996 that Congress passed the Defense of Marriage Act “defining marriage for all federal-law purposes as ‘only a legal union between one man and one woman as husband and wife.’”15
Abortion is undoubtedly controversial, and I am not blind to religious and other moral objections to abortion. Yet the same arguments were being made not so long ago (and likely continue to be made by many) to justify criminalizing homosexuality and to uphold laws penalizing miscegenation. During oral argument in Dobbs, Justice Kavanaugh asked Solicitor General Prelogar: “When you have those two interests at stake and both are important . . . why not — why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people being able to resolve this?”16
The simple answer is that you — the Court — took on that responsibility as the Supreme Court of the United States when you declared: “It is emphatically the province and duty of the judicial department to say what the law is.”17 Just because an issue is difficult, controversial, or politically charged does not justify the Court’s shirking its duty. In a time when divisiveness between and among states and the people of this country is at an all-time high, the correct answer is not — indeed cannot be — “there will be different answers in Mississippi and New York, different answers in Alabama than California, because there are two different interests at stake and the people in those states might value those interests somewhat differently.”18
Oscar J.E. Stuart wrote to Secretary Thompson regarding a patent on the “double plow and scraper” not because he wanted to ensure that Ned received recognition for his invention. Instead, Stuart sent his letter because, as a lawyer, he felt that his inability to obtain a patent on an invention by a slave he owned, violated his right to “equal protection.”19 We have made a great deal of progress, as a profession and as a nation, in our understanding of “equal protection” since 1857. It is, thus, infuriating that the Supreme Court is once again about to undo much of that progress at least when it comes to women and especially women of color.
Kaustuv M. Das is the President of the King County Bar Association and an attorney with Intellectual Ventures. He can be reached at KCBABoardPresident@kcba.org or at (425) 247-2431.
1 Brian L. Frye, Invention of a Slave, 68 Syracuse Law Review 181, 189 (2018) available at https://papers.ssrn.com/sol3/papers.cfm?
abstract_id=2918085 (last visited January 17, 2022).
2 Id.at 193-94.
3 Id. at 194 (quoting Letter from Joseph Holt, Comm’r of Patents, to Oscar J. E. Stuart (Nov. 24, 1857) emphasis in original).
4 Scott v. Sandford, 60 U.S. 393, 419-20 (1857) (“Dred Scott”).
5 U.S. Const. Art. I, § 9 cl. 1.
6 Dred Scott, 60 U.S. at 411 (citing U.S. Const. Art. IV, § 2 cl. 3).
7 In addition to Professor Frye’s paper cited above, I recommend Professor Kara Swanson’s Essay “Race and Selective Legal Memory: Reflections on Invention of a Slave,” Columbia Law Review Vol. 120, 1077 (2020) available at https://columbia
text=Kara%20W.&text=In%201858%2C%20the%20United%20States,forgotten%2C%20dropped%20from%20legal%20memory (last visited January 17, 2022).
8 Brief of Amici Curiae Economists in Support of Respondents at 10, Dobbs v. Jackson Women’s Health Organization (No. 19-1392) (Sep. 20, 2021).
9 Id. at 11-12.
10 Id. at 13.
12 Id. at 24-25 (citing Sarah Miller et al., The Economic Consequences of Being Denied an Abortion (Nat’l Bureau of Econ. Research, Working Paper No. 26662, 2020)).
13 Steven D. Levitt & Stephen J. Dubner, Freakonomics 139-45 (William Morrow 2009).
14 Interchange between Justice Kavanaugh and Mr. Stewart, Dobbs v. Jackson Women’s Health Organization transcript at 43:10-44:17 (Dec. 1, 2021) available at https://www.supremecourt.gov/
1392_4425.pdf (last visited January 17, 2022).
15 Obergefell v. Hodges, 576 U.S. 644, 662 (2015).
16 Interchange between Justice Kavanaugh and General Prelogar, Dobbs transcript at 107:9-19 available at https://www.supremecourt.gov/oral_
17 Marbury v. Madison, 5 U.S. 137, 177 (1803).
18 Interchange between Justice Kavanaugh and General Prelogar, Dobbs transcript at 107:9-19 available at https://www.supremecourt.gov/oral_
19 68 Syracuse Law Review 181 at 189.