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Kendall Stanley: The true Clarence Thomas

·4 min read

Supreme Court Justice Clarence Thomas has always been an outlier, chiding his fellow justices, taking a dim view of anything that wasn’t in the Constitution becoming part of the judicial fabric of the country.

And thus as justice Samuel Alito’s authorship of the reversal of Roe v. Wade claimed abortion isn’t part of federal law because there is no mention of it in the Constitution, Thomas declared in his concurrence that the ruling didn’t go far enough, there were other issues the court should reconsider.

Far be it for me to call Thomas a hypocrite, but if you’re seeking to revisit rulings that allow for people to use birth control, have same-sex intimate relations and allow for same-sex marriage, but don’t mention the right to interracial marriage spelled out in Virginia v. Loving when you are Black and your wife is white, well, it sure looks like hypocrisy.

Associate Supreme Court Justice Clarence Thomas
Associate Supreme Court Justice Clarence Thomas

The reversal of Roe puts the regulation or denial of abortions back on the states (some states had laws in place before Roe v. Wade allowing abortion). Immediately following the Supreme Court’s decision states fell all over themselves to be the first to outlaw abortion, with some states looking to reconvene legislatures off for the summer so abortion regulations or denial could be put into place.

While the court suggests the question of abortion should go back to the states and their representatives, it didn’t take long for some in the pro-life movement to begin to try and figure out how to enact a federal ban on abortion.

So much for let the people in the states decide.

Thomas’ long-standing push for originalism in making rulings may seem innocent enough when he is a lone voice, but there is a danger lurking there with the appointment of three solidly conservative justices in Brent Kavanaugh, Neal Gorsuch and Amy Comey Barrett.

Kendall P. Stanley
Kendall P. Stanley

Alito made it clear in his opinion that nothing in the ruling against Roe would have any impact on any other rulings.

The three justices that disagreed — Breyer, Kagan and Sotomayor — said you can’t have it both ways.

“So if the majority is right in its legal analysis, all those decisions were wrong,” the dissenters noted. “And if that is true, it is impossible to understand (as a matter of logic and principle) how the majority can say that its opinion today does not threaten — does not even ‘undermine’ — any number of other constitutional rights.”

Or as Washington Post columnist Ruth Marcus noted, “Thomas may be alone now, but who knows who will be willing to join him down the road? His envelope-pushing is more than doctrinal provocation — it has real-world consequences. It invites conservative activists to bring such challenges. Thanks to President Donald Trump, the lower federal courts are stocked with former Thomas clerks eager to take up the cause and push the law in that direction. What starts as an extreme, outlier view can migrate into the conservative mainstream.”

Last week’s ruling ends nothing.

States where abortion is permissible, such as Illinois, will continue to see an influx of women from Missouri and others states where abortion is prohibited. Women will find ways to get medicinal abortion pills either from other states or from out of the country. Lawsuits will be filed as states seek to hold doctors and others responsible for helping women get abortions, such as providing transportation out of state for abortions.

What the Supreme Court has done has emboldened state legislatures, with their typical male majorities, to enact regulations that totally control women’s lives. Get pregnant and the state’s abortion law means the state now owns you. Doesn’t matter if you were raped, or were impregnated by your drunken father when you are 13, doesn’t matter if the fetus you are carrying will die within hours of birth because of a defect. None of it will matter, because if you’re pregnant in about half the states in the country, the state owns you.

They don’t say that of course, but how else can you describe it if the decision is no longer yours to make?

There’s an old saying of if there’s a will there’s a way. Before Roe women seeking an abortion found ways to get one, albeit dangerous in many cases.

I have no doubt that will again be the case after Roe’s demise.

— Kendall P. Stanley is retired editor of the News-Review. He can be contacted at kendallstanley@charter.net. The opinions expressed in this column are those of the writer and not necessarily of the Petoskey News-Review or its employees. 

This article originally appeared on The Petoskey News-Review: Kendall Stanley: The true Clarence Thomas