I’m having a fascinating (but frustrating) e-mail conversation with James Taranto of The Wall Street Journal. The question is whether Justice Antonin Scalia believes that Griswold v. Connecticut (1965) was wrongly decided. James keeps saying that Justice Scalia has never said that Griswold was wrongly decided. Maybe so, but he’s logically committed to it. Justice Scalia joined Justice Clarence Thomas’s concurrence in Gonzales v. Carhart (2007) the other day.  Justice Thomas wrote: “I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U.S. 113 (1973), has no basis in the Constitution.” But Roe rested on Griswold, which purported to find a right to privacy in the Constitution. Is it possible to believe that Roe has no basis in the Constitution but that Griswold does? In other words, doesn’t the wrongness of Roe entail the wrongness of Griswold?

Addendum: I’d like to thank JJS for reminding me (in a comment to this post) that Justice Byron White voted to strike down the anti-contraception law in Griswold but voted to uphold the anti-abortion laws in Roe and its companion case, Doe v. Bolton. Unless Justice White contradicted himself, therefore—or changed his mind—it’s possible to believe that Roe has no basis in the Constitution but that Griswold does. Note that the basis on which Justice White voted to strike down the anti-contraception law in Griswold is that the law violates the Fourteenth Amendment’s Due Process Clause. He did not rest his decision on the so-called right to privacy. I suppose Justice Scalia could do the same thing, in which case James Taranto is right that we don’t know what Justice Scalia thinks of Griswold. Justice Scalia hasn’t (to my knowledge) told us what he thinks of the case, and we can’t infer what he thinks of it merely from his belief (which he clearly expressed in Gonzales v. Carhart) that Roe has no basis in the Constitution. If you want my best guess, it is that Justice Scalia thinks Griswold wrongly decided. I believe James and I are in agreement on this point.

Addendum 2: You’ll notice that I wrote, “Unless Justice White contradicted himself. . . .” I’m starting to think that he did! He says that the Fourteenth Amendment confers a right to use contraception. Why does it not also confer a right to have (or perform) an abortion? What’s the relevant difference? In both cases, liberty is at stake. In both cases, there is an interest in controlling one’s procreative capacity. If these rights stand or fall together, then one cannot consistently strike down an anti-contraception law but uphold an anti-abortion law; and if that is the case, then one cannot believe that Roe has no basis in the Constitution but that Griswold does. I need to think more about this. You haven’t prevailed yet, James!