In a recent 60 minutes interview, U.S. Supreme Court Justice Antonin Scalia shared his thoughts on abortion. In response to a question about how his Catholicism affects his judicial decisions, Scalia said:
“I’m a law-and-order guy. I mean, I confess I’m a social conservative, but it does not affect my views on cases. On the abortion thing for example, if indeed I were, you know, trying to impose my own views, I would not only be opposed to Roe versus Wade, I would be in favor of the opposite view, which the anti-abortion people would like adopted, which is to interpret the Constitution to mean that a state must prohibit abortion. … There’s nothing there. They did not write about that.”
A little later he continued in the same vein:
“My job is to interpret the Constitution accurately. And indeed, there are anti-abortion people who think that the constitution requires a state to prohibit abortion. They say that the Equal Protection Clause requires that you treat a helpless human being that’s still in the womb the way you treat other human beings. I think that’s wrong. I think when the Constitution says that persons are entitled to equal protection of the laws, I think it clearly means walking-around persons. You don’t count pregnant women twice.”
I’m not so sure I agree with Scalia’s hyper-originalism here (I think a good case can be made that abortion is unconstitutional), but pro-life advocates need to take notice of what he said. Some pro-life supporters are not only hoping for Roe v Wade to be overturned by the Supreme Court in the near future, but they are hoping the Supreme Court will completely reverse itself, and declare that the Constitution protects the life of the unborn as well as the born. This would invalidate all democratically instituted abortion laws, just as Roe invalidated all democratically instituted anti-abortion laws. Scalia is one of the most conservative judges on the Supreme Court. If he does not think abortion is unconstitutional, there is virtually no chance the Supreme Court will ever decide as much in our lifetime, if ever. At best the Supreme Court will overturn Roe, returning the issue of abortion back to the states, and giving us the opportunity to persuade our fellow citizens to outlaw abortion in our state, in every state across the nation.
Thinking to Believe 
May 6, 2008 at 6:03 pm
That’s strict constructionists for you. If you want abortion to be unconstitutional, you want conservative activists on the court.
Scalia’s argument is helpful to pro-lifers. It presents Roe as an extreme outcome, abortion being unconstitutional as an extreme outcome, and overturning Roe as a reasonable middle way. (And best, Scalia is right.)
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May 7, 2008 at 11:35 am
What’s wrong with strict constructionism? I find it vastly superior to the living document approach. The latter results in us being governed by the opinions of the judges, rather than the Constitution. As Scalia once noted, “the Constitution is not a living organism, for Pete’s sake. It’s a legal document. And like all legal documents, it says some things and it doesn’t say other things.” Its meaning does not change over time.
My only beef with the judicial philosophy of strict constructionism is that some of its adherents put the words of the text and the intent of the authors on the same level, or in some cases elevate the latter above the former. In some instances it is not possible for us to know what the founders intended by a certain phrase or word. Sometimes there were different intentions, but all agreed to the same wording. A better approach is to focus on the meannig of the words themselves as stated. Historical information is still valuable in this pursuit, but it is more valuable for determining what the words did not mean rather than what they did mean.
I don’t think you need an activist judge to rule abortion as unconstitutional. The constitution guarantees the right to life of its citizens. If the unborn are human beings, then they are citizens as well, and their lives are protected by the constitution.
Where Scalia goes wrong is in focussing on intent rather than the actual words of the text. Surely he is right. The founders were thinking of born humans. And while he did not say it in the interview, historically speaking, the states allowed abortion before “quickening.” Given his version of strict constructionism, there would be no basis for declaring abortion unconstitutional.
But the fact remains that the founders weren’t thinking of Indians when they wrote the Constitution either. Does that mean they have no right to life according to the Constitution?
Furthermore, as far as intent goes, the states only allowed abortion before quickening because they mistakenly thought the baby was not alive prior to that time. But they outlawed it after this point because they were opposed to killing human life. They were horribly wrong as science has shown. But I think it is safe to say that had they known the science of embryology, they would not have permitted abortion at all.
So I think there is good reason to ban abortion as unconstitutional, and I do not think this would be activist in any sense of the word–no more than declaring the government slaughter of Indians to be unconstitutional.
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