Intruding on Roe: Simplistic Logic and Backward-Looking Opinions


Washington. -- Now we know for sure what Clarence Thomas thinks of abortion. Actually, most of us knew when he was saying that he did not know. He was lying. It was one of several lies that put him on the bench.

Justice Thomas went straight into the far-right corner of the Supreme Court, where he and Antonin Scalia have been hissing and spitting at the other justices ever since. A new rancor in the judiciary dates from Justice Scalia's arrival there. It is perhaps a benign malice, since it seems to have alienated people who might otherwise have been his allies. It may seem odd to say, but the bad manners of Justice Scalia may well work for the preservation of the republic.

In his dissent from the last abortion decision, Justice Scalia added bad arguments to his customary bad temper. There were two arguments so simplistic as to be unworthy of any freshman in a logic course.

The first argument was a parallel Justice Scalia tried to draw between a woman's right to choose an abortion and the right of people to bigamous marriages. Laws against bigamy, says Justice Scalia, "intrude upon men's and women's liberty to marry and live with one another" -- even though some Mormons claim bigamy as a First Amendment right under the free exercise of their religion.

This is going at things entirely backward. There is no question of a right to cohabit with more than one man or woman. (That falls under increasingly unobserved laws dealing with adultery.) The question is whether the state should sanction more than one marriage at a time. The reason for answering that question with a "no" has to do with ancient laws of inheritance. It would be hard to establish the sanctioned property rights of children under the law where indeterminate parentage is involved. The state protects children's property rights by limiting legally sanctioned marriages to one at a time.

What has all this to do with abortion? Exactly nothing. It is a red herring Justice Scalia produced out of indignation intruding on the sphere of ratiocination.

Then there is his argument from social concord. Justice Scalia tells us that Roe v. Wade produced discord where there was previous social peace. Continuing Roe v. Wade in effect will prolong the acrimonious disagreement it caused in the first place, according to him.

This argument should be familiar to us all. It was the one used by Southerners during the civil-rights conflicts of the 1950s and 1960s: "Our niggras were happy until the court came along and stirred them up with the decision in Brown v. Board of Education." The Southerners who made this argument were blind to the social injustices that people had protested for years, in ways that remained ineffectual because the courts had not addressed their just grievances.

All of us know now what those who cared were aware of at the time -- the suppressed tales of oppression that lay behind the claim that "niggras" actually liked the social arrangements of the South. If turmoil followed upon the Brown decision in 1954, it was not caused by that decision -- it was caused by resistance to the long-delayed recognition of injustices. It was white unwillingness redress those grievances that caused the turmoil.

But few thought that the genie could be put back in the bottle simply by having the court reverse the Brown decision. Once out in the open, the racial conflict could be addressed only by going forward on the issues, not by returning to some fictitious time of peace in the status quo ante.

Yet Justice Scalia tries to claim that all will be peaceful again if the Roe decision is just reversed. He blanks out knowledge of women's struggles for equal rights, including the right of choice, that existed under the long neglect of their grievances. He ignores the history of abortion itself -- the illegal operations sought for, unfound, paid for exorbitantly, attempted by women themselves, botched by themselves or by shady practitioners.

The moderate center of the court recognizes that this, too, is a genie that, once escaped from the bottle, cannot be crammed back in. Some expressed wonder that Reagan appointees made this decision. But George Bush, Ronald Reagan's heir, breathed far more easily after the decision than before. He would be the one to cope with real turmoil if the right to choose were again debated from the ground up in legislature after legislature.

There has long been a very conservative argument for leaving Roe v. Wade intact -- the fact that any laws against abortion would now be as hard to enforce as Prohibition was in the 1920s. A consensus in favor of choice has been formed and the court cannot defy that with impunity. The fecklessness of any effort at defiance can be read in the flailings of Justice Scalia as he tries to argue but ends up babbling.

Garry Wills is a syndicated columnist.

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