Recalling Antonin Scalia: “I Am Sure Abortion is Not Protected by the Constitution”

Opinion   Paul Stark   Jan 3, 2018   |   6:00PM    Washington, DC

U.S. Supreme Court Justice Antonin Scalia believed that the role of the Court is to faithfully interpret and apply the law as it actually is—not as the Court wants it to be. Making law and policy is the job of the elected branches of government. Judges, he insisted, should not be legislators.

That’s why Scalia took the position he did on abortion and the Constitution. The Constitution simply does not require, as the Court mistakenly ruled in Roe v. Wade (1973), a nationwide policy of abortion on demand. In his dissenting opinion in Planned Parenthood v. Casey (1992), which upheld the “central holding” of Roe, Scalia explained:

The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion … for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed.

Therefore, Scalia concluded, “The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”

Dissenting in Stenberg v. Carhart (2000), which struck down a state law banning partial-birth abortion, Scalia wrote:

The notion that the Constitution of the United States, designed, among other things, “to establish Justice, insure domestic Tranquility … and secure the Blessings of Liberty to ourselves and our Posterity,” prohibits the States from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.

Hodgson v. Minnesota (1990) dealt with the details of Minnesota’s parental notification law. In a complicated and divided outcome, the Court upheld the law as long as there is a judicial bypass option (Scalia would have upheld the law regardless). Scalia noted:

One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions; and will find in our society’s tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer’s—and hence not in the judge’s—workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.

Nor does anything in the Constitution prevent states from prohibiting assisted suicide or protecting against the dehydration and starvation of medically vulnerable patients. In Cruzan v. Missouri Department of Health (1990), Scalia wrote:

American law has always accorded the State the power to prevent, by force if necessary, suicide … [T]he point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate,” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.

Scalia was part of the unanimous decisions in Vacco v. Quill and Washington v. Glucksberg (1997), which held that there is no right to assisted suicide. In his dissenting opinion in Gonzales v. Oregon (2006), Scalia argued that the Attorney General is allowed, under federal law, to prevent the use of drugs in Oregon for assisted suicide:

Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. … If the term “legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death.

In Roe v. Wade and subsequent decisions, the Court usurped the authority of the American people and their elected representatives to determine abortion policy—and 58 million abortions have been the result. Some people want the Court to do the same with assisted suicide.

To prevent that from happening—and to reverse Roe, allowing for greater protection for unborn children and their mothers—we desperately need more Supreme Court justices like Antonin Scalia.

LifeNews.com Note: Paul Stark is a member of the staff of Minnesota Citizens Concerned for Life, a statewide pro-life group.