Justice Scalia: No Right to Abortion in Constitution
Posted on October 17, 2007
He has said it before, but he reconfirms it at a speech at Villanova Law School’s Second Annual John F. Scarpa Conference on Law, Politics & Culture. He speaks quite clearly, and I agree.
He said that notion is not guided by his Catholic views but by his understanding of the Constitution and his perspective as a “strict originalist” and “legal positivist.”
“Not everything you may care about is in the Constitution,” he told the audience, according to a report in The Bulletin newspaper. “It is a legal document that had compromises in it. What it says it says; what it doesn’t say it doesn’t say.”
“I don’t agree we are in an era of narrow constitutional interpretation. There are still sweeping decisions out there,” Scalia added.
“Roe v. Wade is one. There is nothing in the Constitution about the right to abortion,” the associate justice explained.
Scalia said that he also supports the notion that state legislatures should be allowed to make laws because they are closer to the people. That state’s rights argument has long been extended towards overturning Roe v. Wade.
“To the extent you believe judges have the right to change law then you are in the soup,” he argued, according to The Bulletin.
“Why would you think nine people, much less nine lawyers, are likely to come to a more accurate reflection of current mores than our legislators?”
» Filed Under ACLU, Abortion, News, Supreme Court
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9 Responses to “Justice Scalia: No Right to Abortion in Constitution”
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I agree. The Constitution protects the rights of individuals; we can all agree on that. However, there is a reasonable disagreement over what constitutes an “individual”. Is a zygote an “individual”? An embryo? A fetus? In RvW, SCOTUS declared that one is not an individual until after birth and therefore the fetus has no rights.
It is incredibly reasonable for people to be disgusted by that conclusion.
This isn’t a black and white issue, though; there are several possible conclusions that a rational person can reach and it should come as no surprise that different states would legislate the matter differently. If we don’t think state governments are the appropriate venue for such a contentious, irreconcilable issue, what issues should they handle?
FYI:
I agree with Ron Paul here as well Jeff. We have an issue we seem to agree on as well.
We have many more. They just aren’t discussed on this site.
“However, there is a reasonable disagreement over what constitutes an “individual” Jeff Molby
Not Really! If you use biology then the zygote is considered an individual member of the species. If instead you choose to ignore science, then according to common law life begins at quickening. Our legal system with the exception of Louisiana are common law systems. The question is whether the states or federal legislation have the legal authority to alter that definition. Whatever the case the federal courts don’t, so Roe v. Wade is faulty.
Oh yeah, I need to clarify. I don’t agree with that part of Jeff’s argument. Just the States rights part.
Why? Because it has a full complement of DNA? Because it’s capable of splitting? That’s a pretty low standard that will cover more than you intend.
It’s not unreasonable to suggest that brainwaves are a prerequisite for personhood. After all, that’s what we use to define the end of life.
Why? Because it has a full complement of DNA?
Not only that, but also the fact that a geneticist can distinguish between the DNA of an embryo and that of a sperm and egg. The same geneticist could not distinguish between the DNA of a developing embryo and a full-grown human being.
It’s not unreasonable to suggest that brainwaves are a prerequisite for personhood. After all, that’s what we use to define the end of life.
Then it’s not unreasonable to use the same method to determine the beginning of life.
Brain waves are detected in the fetus in about 40-43 days.
“Why? Because it has a full complement of DNA? Because it’s capable of splitting? That’s a pretty low standard that will cover more than you intend.” Jeff Molby
I am rusty on human development but I believe it is because it is a human organism and so can develop the ability to act independently. The same is not true of a gamete which is considered a shed cell of the parent organism.
The brainwave argument is basically the same argument used by religious people who believed life began when the soul entered the body. I see no reason to prize one religion or philosophy over another. If we do that then it should be up to the legislature of the state to define life. I have qualms about that as Jews could thus be defined as non-persons.
I agree, Lobo. So why did Jay and Kerwin jump all over me when I pointed out that “at conception” isn’t the only morally justifiable answer.
I don’t understand how late term abortions can be justified* morally, but there are some pretty serious milestones in that first trimester and I can understand why reasonable people disagree about which one is truly the beginning of life.
After all, before we knew about brainwaves, we would have marked the first heartbeat as the beginning. And there was a time when we couldn’t observe the heartbeat either.
*Except in that rare case where a doctor literally has to choose one life to avoid losing both.