Supreme Court Justice Antonin Scalia frequently talks about his views on abortion and the high court case that allowed for unlimited abortions throughout pregnancy for any reason.
As the nation looks to mark the 38th anniversary of Roe v. Wade later this month and 53 million abortions it has ushered in, Scalia said in a new interview that the case is an “absurdity.”
“You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it,” he said in an interview with California Lawyer.
For those wanting to make abortion legal, “Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”
Scalia reiterated his position that the Constitution’s 14th Amendment doesn’t guarantee equal protection for women in a way that could be construed as allowing abortion on demand.
Scalia told the California Lawyer publication that, while the amendment doesn’t offer equal protection for women, state legislatures are free to legislate such protections. He said the amendment, when it was adopted, was not intended to offer legal protection for women. Abortion advocates have used it to constitutionally justify legal abortions.
“Certainly the Constitution does not require discrimination on the basis of sex,” Scalia said. “The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”
“If indeed the current society has come to different views, that’s fine. You do not need the Constitution to reflect the wishes of the current society,” he said. “If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box.”
Scalia is considered to be one of the four justices most likely to support overturning Roe if a case reached the high court. Justice Clarence Thomas has also publicly expressed his desire to overturn the 1973 decision.
Chief Justice John Roberts and Justice Samuel Alito have already issued one abortion opinion overturning a previous Supreme Court decision allowing partial-birth abortions and overturning a partial-birth abortion ban claiming it required a health exception. Their decision to reverse and affirm Congress’ findings that abortion is never necessary to protect women’s health is seen as an indication they may be willing to overturn Roe as well.
Together, the four comprise a minority of four justices compared with the pro-abortion majority for Roe, which includes Justice Anthony Kennedy, who has gone along with limits on abortion but has not shown any indication he would side with those favoring overturning Roe.