Antonin Scalia on Abortion
Supreme Court Justice (nominated by Pres. Reagan 1986)
Since Framers didn't allow abortion, the issue is settled
Edwin Meese, Reagan's attorney general, provided a framework for conservative critique when he called for a "jurisprudence of original intention." The words of the Constitution, he said, meant only what the authors of the document thought they meant; the
meaning of the words did not evolve over time. This was an unprecedented view. Most justices thought that the words of the Constitution were to be interpreted in light of a variety of factors, beyond just the intentions of the framers.
The debate over
original intent amounted to a proxy for the legal struggle over legalized abortion. No one argued that the authors of the Constitution intended for their words to prohibit states from regulating a woman's reproductive choices; to Scalia, that ended the
debate over whether the Supreme Court should protect a woman's right to choose. If the framers did not believe that the Constitution protected a woman's right to an abortion, then the Supreme Court should never recognize any such right either.
Source: The Nine, by Jeffrey Toobin, Chapter One
, Sep 9, 2008
Opposes Roe v. Wade despite stare decisis precedent
[Scalia supports] the textualist effort to discern meaning--the original meaning as embodied in the text. That is not, however, "intent." We do not ask, in a proper textualist analysis, what the framers of the Constitution "intended." We inquire, rather,
into what the words they chose to employ mean. And that meaning is controlling.
Nor is the textualist overly wedded to the Court's prior cases and their holdings. This is very much a matter of judgment, or degree, as to how much respect the applicable
set of judicial precedents should enjoy. But as a matter of judgment, and as a matter of degree, the common-law value of precedent--stare decisis--ranks lower on the textualist value scale.
Scalia's passionate and continuing opposition, year after year, to Roe v Wade illustrates the relative weakness of stare decisis for a textualist. That, then, is textualism, or the Scalia school.
Source: First Among Equals, by Kenneth Starr, p. 27-28
, Oct 10, 2002
Leave abortion to states; Court should get out of this area
There is a poignant aspect to today’s opinion [upholding Roe v. Wade]. Its length, and what might be called its epic tone, suggest that its authors believe they are bringing to an end a troublesome era in the history of our Nation, and of our Court.
Quite to the contrary, by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers,
the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.
Source: 1992 SCOTUS dissent in PLANNED PARENTHOOD v. CASEY
, Jun 29, 1992
Roe v. Wade was wrongly decided & should be overturned.
Justice Scalia joined the Court's decision on PLANNED PARENTHOOD v. CASEY on Jun 29, 1992:
At issue are five provisions of the Pennsylvania Abortion Control Act of 1982:
- requiring a 24-hour “informed consent” waiting period before the abortion is performed;
- mandating the consent of one parent for a minor to obtain an abortion, with a judicial bypass procedure;
- requiring notification of the husband;
- defining a “medical emergency” that will excuse compliance with the foregoing requirements;
- imposing reporting requirements on facilities providing abortion services.
Held:(Written by O’Connor, Kennedy, and Souter; joined in part by Stevens and Blackmun)
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned.
We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts:
- The right of the woman to choose to have an abortion before viability.
- The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
- The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.
Dissent:(Rehnquist, joined in part by White, Scalia, and Thomas)
The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
Source: Supreme Court case 92-1 argued on Apr 22, 1992
Page last updated: Jul 13, 2015