Editorial Note – Samantha Hodgson

Dissenting Opinion of the late Supreme Court Justice Antonin Scalia

The late Justice Antonin Scalia maintained the position that Roe v Wade “fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since.” This Justice was against “the abortion-umpiring” business to which the Court was now accustomed. In 2020, June Medical Services, LLC v Russo (formerly Gee) brings to the Court the same argument that states and practitioners have had since Roe. The opinions of Justice Scalia give a different perspective to the decade long argument. His manner of thinking often contradicts that of his colleagues.

USA Constitutional interpretation can be approached in different ways. Modern interpretation is to interpret the constitution as it applies to the current society. Another is to analyse the intention of the Founding Fathers and apply the constitution on its face. Scalia applies the latter and dissents how abortion-umpiring has answered this question.

The Pennsylvania Abortion Control Act of 1982 (the Act) was introduced by the State of Pennsylvania. The Act imposed six requirements on women seeking an abortion:

  1. the woman must provide informed consent prior to the procedure;
  2. she must be provided with information at least 24 hours before abortion is performed;
  3. informed consent of one parent if the woman is a minor;
  4. a married woman must sign a statement indicating that her husband has been notified;
  5. the definition of ‘Medical Emergency” under the Act will excuse compliance with the foregoing requirements in Roe; and
  6. abortion providers must meet certain reporting requirements.

Planned Parenthood sought injunctive relief in addition to a declaration by the Court that each of the Act’s provisions was unconstitutional on its face. As in Roe, the Court was faced with the interpretation of the Constitution as it related to abortion rights. 

In Planned Parenthood v Casey 505 US 833 (1992), Justice O’Connor, Justice Kennedy and Justice Souter delivered the majority opinion of the Court which considered the fundamental constitutional questions that Roe had hoped to resolve. These were principles of institutional integrity, and the rule of stare decisis which required that Roe’s essential holding be retained and reaffirmed to each of its three parts:

  1. Recognition of a woman’s right to choose
    1. Pre-viability
    2. Without undue influence from the state

Noting Roe held that State pre-viability interests were not strong enough to support abortion prohibition or the imposition of substantial obstacles to the Woman’s effective right to elect the procedure.

  1. A state may restrict abortions after viability
    1. Exception for pregnancies endangering the life or health of the woman
  2. State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the foetus that may become a child.

The Supreme Court has determined previously that the Constitution protects personal decisions relating to marriage, procreation, family relationships, child rearing (including education) and contraception and that this right is to be free from unwarranted Government intrusion. The majority decided in Casey that this freedom applies to matters “so fundamentally affecting a person as the decision whether to bear or have a child.” The majority opinion put forth that neither the Bill of Rights nor the specific practices of states at the time of the adoption of the Fourteenth Amendment, demonstrated a restriction to the liberty which the Fourteenth Amendment protects. Justice Harlan previously stated that:

The full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the constitution. This ‘liberty’ is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints,… and which also recognises, what a reasonable and sensitive judgement must, that certain interests require particularly careful scrutiny of the state needs asserted to justify abridgment.

 

Justice Scalia delivered an opinion in Casey that was concurring in part and dissenting in part. His Honour agreed that the power of a woman to abort her unborn child is a power and a liberty of importance. What was at issue, here, was whether it is a liberty protected by the Constitution of the United States. Justice Scalia said:

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. Where reasonable people disagree, the government can adopt one position or the other… a state of affairs in which the choice does not intrude upon a protected liberty.

 

Justice Scalia concluded that a woman’s decision to abort is not a constitutionally protected “liberty” because (a) the constitution says nothing about it and (b) “longstanding tradition of American society have permitted it to be legally proscribed.”

The Court’s suggestion, ante, at 847–848, that adherence to tradition would require us to uphold laws against interracial marriage is entirely wrong. Any tradition in that case was contradicted by a text—an Equal Protection Clause that explicitly establishes racial equality as a constitutional value. See Loving v. Virginia, 388 U. S. 1, 9 (1967) (“In the case at bar, . . . we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race”); see also id., at 13 (Stewart, J., concurring in judgment). The enterprise launched in Roe v. Wade, 410 U. S. 113 (1973), by contrast, sought to establish—in the teeth of a clear, contrary tradition—a value found nowhere in the constitutional text. There is, of course, no comparable tradition barring recognition of a “liberty interest” in carrying one’s child to term free from state efforts to kill it. For that reason, it does not follow that the Constitution does not protect childbirth simply because it does not protect abortion. The Court’s contention, ante, at 859, that the only way to protect childbirth is to protect abortion shows the utter bankruptcy of constitutional analysis deprived of tradition as a validating factor. It drives one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.

 

In his analysis of the term “liberty”, Justice Scalia reverted to his interpretation of the constitution in Michael H v Gerald D 491 U.S. 110, 127-128, n.6 (1989) (Michael H), to mean “only those practices, defined at the most specific level, that were protected against government interference by other rules of law when the Fourteenth Amendment was ratified”. Michael H observed that in defining “liberty” the specific, “relevant tradition protecting, or denying protection to, the asserted right” should not be disregarded. In bringing this analysis to fruition, Justice Scalia found that:

the Court’s statement that it is “tempting” to acknowledge the authoritativeness of tradition in order to “curb the discretion of federal judges” is of course rhetoric rather than reality; no government official is “tempted” to place restraints upon his own freedom of action, which is why Lord Acton did not say “power tends to purify”. The Court’s temptation is not quite opposite and more natural discretion – towards systematically eliminating checks upon its own power; and it succumbs.

 

Justice Scalia concluded that the Pennsylvania law should be upheld in its entirety under the rational-basis rule. Justice Blackmun rebutted, in relation to Scalia’s opinion, that:

Justice Scalia urges the Court to “get out of this area,” post, at 1002, and leave questions regarding abortion entirely to the States, post, at 999–1000. Putting aside the fact that what he advocates is nothing short of an abdication by the Court of its constitutional responsibilities, Justice Scalia is uncharacteristically naive if he thinks that overruling Roe and holding that restrictions on a woman’s right to an abortion are subject only to rational-basis review will enable the Court henceforth to avoid reviewing abortion-related issues. State efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions meriting review by this Court. For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? What effect would difference among States in their approaches to abortion have on a woman’s right to engage in interstate travel? Does the First Amendment permit States that choose not to criminalize abortion to ban all advertising providing information about where and how to obtain abortions?

 

Justice Scalia’s view, generally, in relation to the constitutional responsibilities of the court was that it should practice “originalism” in its interpretation of the ordinary meaning of a statute as opposed to a “living constitution” which evolves with the changing times. In his dissent in Thompson v Oklahoma, 487 U.S. 815, 865:

The risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one’s own views.

 

In Planned Parenthood, Justice Scalia structures his opinion by addressing 5 statements from the majority opinion:

(1) The majority concluded: “The inescapable fact is that adjudication of substantive due process claims may call upon the court in interpreting the Constitution to exercise that same capacity which by tradition courts always have exercised: reasoned judgement.”

Justice Scalia’s opinion of the abortion argument is that it is founded on whether or not a fetus or unborn child is a human life.

Thus, whatever answer Roe came up with after conducting its “balancing” is bound to be wrong, unless it is correct that the human fetus is in some critical sense merely potentially human. There is of course no way to determine that as a legal matter; it is in fact a value judgment.

To paraphrase, the Court could not provide a reasoned judgement to the subject of abortion as:

Surely, if “[t]he Court’s power lies . . . in its legitimacy, a product of substance and perception,” ante, at 865, the “substance” part of the equation demands that plain error be acknowledged and eliminated. Roe was plainly wrong—even on the Court’s methodology of “reasoned judgment,” and even more so (of course) if the proper criteria of text and tradition are applied…Roe is displayed in plain view by the fact that, after more than 19 years of effort by some of the brightest (and most determined) legal minds in the country, after more than 10 cases upholding abortion rights in this Court, and after dozens upon dozens of amicus briefs submitted in these and other cases, the best the Court can do to explain how it is that the word “liberty” must be thought to include the right to destroy human fetuses is to rattle off a collection of adjectives that simply decorate a value judgment and conceal a political choice. The right to abort, we are told, inheres in “liberty” because it is among “a person’s most basic decisions,” ante, at 849; it involves a “most intimate and personal choic[e],” ante, at 851; it is “central to personal dignity and autonomy,” ibid.; it “originate[s] within the zone of conscience and belief,” ante, at 852; it is “too intimate and personal” for state interference, ibid.; it reflects “intimate views” of a “deep, personal character,” ante, at 853; it involves “intimate relationships” and notions of “personal autonomy and bodily integrity,” ante, at 857; and it concerns a particularly “ ‘important decisio[n],’ ” ante, at 859 (citation omitted).2 But it is obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today’s majority, see Bowers v. Hardwick, 478 U. S. 186 (1986)) has held are not entitled to constitutional protection—because, like abortion, they are forms of conduct that have long been criminalized in American society. Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep[ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court’s decision; only personal predilection.

 

Justice Scalia referred to the dissenting opinion of Justice Curtis in Dred Scott v Sandford, 19 How. 393, 621 (1857):

[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.

 

(2) The majority opinion stated: “Liberty finds no refuge in jurisprudence of doubt.”

Roe had determined that any regulation of abortion before the third trimester was invalid. This phrase requires federal district judges to apply an “undue burden” standard to determine the validity of a regulation on abortion. In Justice Scalia’s opinion, the joint opinion:

concedes that the amorphous concept of “undue burden” has been inconsistently applied by the Members of this court in the few brief years since that “test” was first explicitly propounded (put forward) by Justice O’Connor in her dissent in Akron I.

 

Justice Scalia reasoned that in setting the new standard of “undue burden”, that standard needed to be clearly set out. His Honour concluded:

The joint opinion is clearly wrong in asserting, ante, at 874, that “the Court’s early abortion cases adhered to” the “undue burden” standard. The passing use of that phrase in Justice Blackmun’s opinion for the Court in Bellotti v. Baird, 428 U. S. 132, 147 (1976) (Bellotti I), was not by way of setting forth the standard of unconstitutionality, as Justice O’Connor’s later opinions did, but by way of expressing the conclusion of unconstitutionality. Justice Powell for a time appeared to employ a variant of “undue burden” analysis in several non-majority opinions, see, e. g., Bellotti v. Baird, 443 U. S. 622, 647 (1979) (Bellotti II); Carey v. Population Services International, 431 U. S. 678, 705 (1977) (opinion concurring in part and concurring in judgment), but he too ultimately rejected that standard in his opinion for the Court in Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 420, n. 1 (1983) (Akron I). The joint opinion’s reliance on Maher v. Roe, 432 U. S. 464, 473 (1977), and Harris v. McRae, 448 U. S. 297, 314 (1980), is entirely misplaced, since those cases did not involve regulation of abortion, but mere refusal to fund it. In any event, Justice O’Connor’s earlier formulations have apparently now proved unsatisfactory to the three Justices, who—in the name of stare decisis no less—today find it necessary to devise an entirely new version of “undue burden” analysis.

 

The majority concludes that a state regulation imposes an “undue burden” if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” An obstacle is “substantial” if it is “calculated, not to inform the woman’s free choice, but to hinder it.” To this Justice Scalia responds:

The joint opinion further asserts that a law imposing an undue burden on abortion decisions is not a “permissible” means of serving “legitimate” state interests. Ante, at 877. This description of the undue burden standard in terms more commonly associated with the rational-basis test will come as a surprise even to those who have followed closely our wanderings in this forsaken wilderness. See, e. g., Akron I, supra, at 463 (O’Connor, J., dissenting) (“The ‘undue burden’ . . . represents the required threshold inquiry that must be conducted before this Court can require a State to justify its legislative actions under the exacting ‘compelling state interest’ standard”); see also Hodgson v. Minnesota, 497 U. S. 417, 458–460 (1990) (O’Connor, J., concurring in part and concurring in judgment in part); Thornburgh v. American College of Obstetricians and Gynecologists, 476 U. S. 747, 828 (1986) (O’Connor, J., dissenting). This confusing equation of the two standards is apparently designed to explain how one of the Justices who joined the plurality opinion in Webster v. Reproductive Health Services, 492 U. S. 490 (1989), which adopted the rational-basis test, could join an opinion expressly adopting the undue burden test. See id., at 520 (rejecting the view that abortion is a “fundamental right,” instead inquiring whether a law regulating the woman’s “liberty interest” in abortion is “reasonably designed” to further “legitimate” state ends). The same motive also apparently underlies the joint opinion’s erroneous citation of the plurality opinion in Ohio v. Akron Center for Reproductive Health, 497 U. S. 502, 506 (1990) (Akron II) (opinion of Kennedy, J.), as applying the undue burden test. See ante, at 876 (using this citation to support the proposition that “two of us”—i. e., two of the authors of the joint opinion—have previously applied this test). In fact, Akron II does not mention the undue burden standard until the conclusion of the opinion, when it states that the statute at issue “does not impose an undue, or otherwise unconstitutional, burden.” 497 U. S., at 519 (emphasis added). I fail to see how anyone can think that saying a statute does not impose an unconstitutional burden under any standard, including the undue burden test, amounts to adopting the undue burden test as the exclusive standard. The Court’s citation of Hodgson as reflecting Justice Kennedy’s and Justice O’Connor’s “shared premises,” ante, at 878, is similarly inexplicable, since the word “undue” was never even used in the former’s opinion in that case. I joined Justice Kennedy’s opinions in both Hodgson and Akron II; I should be grateful, I suppose, that the joint opinion does not claim that I, too, have adopted the undue burden test.

 

Justice Scalia disagrees that defining an “undue burden” as an undue hinderance will clarify the test:

The standardless nature of the “undue burden” inquiry is a reflection of the underlying fact that the concept has no principled or coherent legal basis.

 

Justice Scalia agreed with Chief Justice Rehnquist that:

Roe’s strict-scrutiny standard “at least has a recognised basis in constitutional law at the time Roe was decided.”, while, “the same cannot be said for the ‘undue burden’ standard, which is created largely out of whole cloth by the authors of the joint opinion”… The joint opinion is flatly wrong in asserting that “our jurisprudence relating to all liberties save perhaps abortion has recognised” the permissibility of laws that do not impose an “undue burden.” It argues that the abortion right is similar to other rights in that a law “not designed to strike at the right itself, [but which] has the incidental effect of making it more difficult or more expensive to [exercise the right]” is not valid.

 

Justice Scalia finds it difficult to “maintain the illusion that we are interpreting a Constitution rather than inventing one, when we amend its provisions so breezily. His Honour says:

The approach of the joint opinion is, for the most part, simply to highlight certain facts in the record that apparently strike the three Justices as particularly significant in establishing (or refuting) the existence of an undue burden; after describing these facts, the opinion then simply announces that the provision either does or does not impose a “substantial obstacle” or an “undue burden.” The inherently standardless nature of this inquiry invites the district judge to give effect to his personal preferences about abortion. By finding and relying upon the right facts, he can invalidate, it would seem, almost any abortion restriction that strikes him as “undue”—subject, of course, to the possibility of being reversed by a court of appeals or Supreme Court that is as unconstrained in reviewing his decision as he was in making it.

 

Justice Scalia has long held a conservative view on the interpretation of the Constitution. Unlike his colleagues, he believes that the Constitution is to be interpreted as the founding fathers intended, rather than moulding it to a more modern interpretation of what fits with American Society in the late twentieth (and now twenty-first) Century. It is this line of thinking that Justice Scalia uses in determining the place of abortion regulation in the Constitution, he says “reason finds no refuge in this jurisprudence of doubt.”

 

(3) The majority opinion stated: “While we appreciate the weight of the arguments… Roe should be overruled, the reservations that many of us may have in reaffirming the central holding of Roe are outweighed by the explication of individual liberty we have given combined with the force of stare decisis.”

In this case, the Court adhered only to the “central holding” of Roe to uphold the principle of stare decisis. Justice Scalia named this the “keep-what-you-want-and-throw-away-the-rest version of stare decisis”. His Honour concluded that the trimester framework, discarded by the Court, was a central part of Roe as the arbitrary viability test, retained by the Court.

trimester framework is rigid whereas “undue burden” test is indeterminable. The framework is probably the only reason the Court is able to say, in urging stare decisis, that Roe “has in no sense proven ‘unworkable’.” Central holding can be whatever the court deems, which is perhaps one of the difficulties with the modified version of stare decisis.

 

The areas of Roe that were not saved included:

  1. Requiring that a Woman seeking an abortion be provided truthful information about abortion before giving informed written consent is no longer unconstitutional.
  2. Requiring that information be provided by a doctor rather than a nonphysician counsellor is no longer unconstitutional.
  3. Requiring a 24-hour waiting period between the time the woman gives her informed consent and the time of the abortion is no longer unconstitutional.
  4. Requiring detailed reports that include demographic data about each woman who seeks an abortion and various information about each abortion is no longer unconstitutional.

 

(4) The majority opinion stated: “Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe . . ., its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the constitution.”

Justice Scalia’s response to this statement, bring us back to his understanding of his duty to the Constitution. His Honour did not believe that it is the role of the Court to modify the Constitution, but rather, only to interpret its true meaning. His Honour did not agree that Roe resolved a national controversy, but rather nourished it and brought it to “the national level where it is infinitely more difficult to resolve.”

 

Had the Court not interjected in the abortion decision, it would be left to the States to decide the appropriate regulations. Justice Scalia reasoned that this would satisfy more people and would not have divided a nation.

 

National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty— but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state-by-state resolution, but also that those results would be more stable. Pre-Roe, moreover, political compromise was possible…Roe’s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level…To portray Roe as the statesman like “settlement” of a divisive issues, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian.

 

His Honour’s language is strong. If abortion regulation were with the States rather than the judiciary, would people turn to the polls rather than the streets to protest this issue? The State governments are intended to represent the majority of people and their views in that State. Since Roe, abortion has been an issue that has “inflamed [American] politics in general” and has influenced the Justices that are admitted to the Court. Justice Scalia believed that persisting in the “abortion-umpiring business is the perpetuation of pax roeana, that the Court’s new majority decrees.” In Justice Scalia and the Art of Rhetoric, Jeffrey M. Shaman unpacked Justice Scalia’s use of pax roeana:

Dissenting in Planned Parenthood of Southeastern Pennsylvania v. Casey, he played a variation on a theme by evoking a Latin phrase, Pax Romana (a long period of peace in the Roman Empire) and giving it a creative twist in reference to Roe v. Wade, to come up with a sharp rebuke to his colleagues on the Court who refused to see the light:

“And by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.”

 Interestingly, while the phrase Pax Romana initially denoted the 207 year period of peace inaugurated by Emperor Augustus Caesar during the Roman Empire, it also is the name of an international organization of Catholic students and academics, as well as the title of a short comic book series by Jonathan Hickman that depicts a group of time travellers sponsored by the Vatican who return to 4th century Rome in an attempt to change the past in order to save the future.23 It is no small irony that Hickman’s plan for safeguarding the future is exactly the inverse of Scalia’s originalist constitutional ideology, according to which the Constitution should be interpreted according to its original meaning at the time when it was first enacted. Whereas Hickman believes that the past must be altered, Scalia insists that it must be perpetuated; whereas Hickman would happily reconstruct the past, Scalia would enshrine it.

 

In Planned Parenthood, Justice Scalia is saying that the majority are reconstructing the Constitution rather than interpreting it. Further, in reconstructing the Constitution, it is more than likely that sides to an argument as enormous as Roe will be more divisive than ever and attempt to bring more to the Justices’ table in a bid to convince them to reconstruct Roe and its place in the Constitution how they believe it should be constructed. Perhaps, Justice Scalia makes a valid point?

 

(5) The majority opinion stated: “[T]o overrule under fire . . . would subvert the Court’s legitimacy . . .. “. . . To all those who will be . . . tested by following, the Court implicitly undertakes to remain steadfast . . . The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and . . . the commitment [is not] obsolete. . .. “[The American people’s] belief in themselves as . . . a people [who aspire to live according to the rule of law] is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals.”

 

Justice Scalia (jokes?): “the Imperial Judiciary lives.” His Honour observes in relation to the Court’s view on its role in relation to the Constitution:

this Nietzschean vision of us unelected, life-tenured judges – leading a Volk who will be “tested by following,” and whose very “belief in themselves” is mystically bound up in their understanding of a Court that “speak[s] before all other for their constitutional ideals” – with somewhat more modest role envisioned for these lawyers by the Founders…This ecstasy of a Supreme Court in which there is, especially on controversial matters, no shadow of change or hint of alteration with the more democratic views of a more humble man: “[T]he candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, . . . the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.” A. Lincoln, First Inaugural Address (Mar. 4, 1861), reprinted in Inaugural Addresses of the Presidents of the United States, S. Doc. No. 101–10, p. 139 (1989). …It is… difficult, in the circumstance of the present decision, to sit still for the Court’s lengthy lecture upon the virtues of “constancy” … of “remain[ing] steadfast” … and adhering to “principle.”

 

In the joint opinion, only three out of the five Justices that adhered to Roe upheld the “undue burden” standard, illustrating its inconsistency with Roe. The remaining two Justices deviated from previous positions. Justice Scalia concludes that the Court is not adhering to a legal principle, rather they are adhering to the “principle that the Court must be seen as standing by Roe.”

 

I am appalled by, the Court’s suggestion that the decision whether to stand by an erroneous constitutional decision must be strongly influenced – against overruling, no less – by a substantial and continuing public opposition the decision has generated. …The Court’s judgement that any other course would “subvert the Court’s legitimacy” must be another consequence of reading the error-filled history book that described the deeply divided country brought together by Roe. In my history book, the Court was covered with dishonour and deprived of legitimacy by Dred Scott v Sandford, an erroneous (and widely opposed) opinion that did not abandon, rather than by West Coast Hotel Co v Parrish, which produced the famous “switch in time” from the Court’s erroneous (and widely opposed) constitutional opposition to the social measured of the New Deal.

 

Justice Scalia referred to the political pressure placed upon the court  from both sides of the abortion argument.

How upsetting it is, that so many of our citizens… think that we Justices should properly take into account their views, as though we were engaged not in ascertaining an objective law but in determining some kind of social consensus.

 

More recently, a similar view was expressed by the current Chief Justice Roberts, replying to President Trump’s reference to ‘Obama Judges’.

We do not have Obama judges or Trump judges, Bush judges or Clinton judges… what we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them…That independent judiciary is something we should all be thankful for.

 

Justice Scalia believed that “text and traditions”, such as the Constitution, are “facts to study, not convictions to demonstrate about”. He deciphers from these facts and value judgements that “should be voted on” not dictated. Abortion should be left with the State’s to vote and legislate on based on the people’s value of abortion.

 

The opposite view is set out in Justice Blackmun’s majority opinion:

Justice Scalia urges the Court to “get out of this area,” post, at 1002, and leave questions regarding abortion entirely to the States, post, at 999–1000. Putting aside the fact that what he advocates is nothing short of an abdication by the Court of its constitutional responsibilities, Justice Scalia is uncharacteristically naive if he thinks that overruling Roe and holding that restrictions on a woman’s right to an abortion are subject only to rational-basis review will enable the Court henceforth to avoid reviewing abortion-related issues. State efforts to regulate and prohibit abortion in a post-Roe world undoubtedly would raise a host of distinct and important constitutional questions meriting review by this Court. For example, does the Eighth Amendment impose any limits on the degree or kind of punishment a State can inflict upon physicians who perform, or women who undergo, abortions? What effect would difference among States in their approaches to abortion have on a woman’s right to engage in interstate travel? Does the First Amendment permit States that choose not to criminalize abortion to ban all advertising providing information about where and how to obtain abortions?

 

The abortion argument cannot be argued on its surface. There are so many levels to this argument and the consequences of any decision, perceived as right or wrong, delve deep into any person’s rights.

 

As the Supreme Court is granted another opportunity to constitute this topic by June Medical Services v Gee and mid-pandemic by Planned Parenthood v Abbott, Justice Scalia’s views on abortion are likely to inflame. The abortion argument has taken the interpretation of the Constitution past deciding the rights of a woman over the interests of the State to the purpose of the Court in interpreting the Constitution.

 

Can’t wait.