By Judie Brown
I was saddened to hear that Supreme Court Justice Antonin Scalia died in his sleep on February 13, 2016, at the age of 79.
Scalia was an ardent defender of the principle that the right to life has been severely denigrated by the United States Supreme Court since the infamous Roe and Doe surgical abortion decisions of 1973. And his love of the Constitution as a document perfected by those who wrote it was often at odds with the notion that the Constitution is a “living document.” He once said, “The Constitution is not a living organism. . . . It’s a legal document, and it says what it says and doesn’t say what it doesn’t say.”
In a 2010 address at Virginia’s University of Richmond, Scalia is quoted by LifeNews.com as saying,
“The Constitution says what it says and it doesn’t say anything more. For flexibility, all you need is a legislature and a ballot box,” he added, in terms of how abortion advocates should attempt to change the constitution if they want to have legal abortions.
By allowing the Supreme Court to create rights not enumerated by the Constitution—“you’re allowing five out of nine hotshot lawyers to run the country.”
Writing a dissenting opinion in the Hill v. Colorado free speech case, Scalia stated, “Having deprived abortion opponents of the political right to persuade the electorate that abortion should be restricted by law, the Court today continues and expands its assault upon their individual right to persuade women contemplating abortion that what they are doing is wrong. Because, like the rest of our abortion jurisprudence, today’s decision is in stark contradiction of the constitutional principles we apply in all other contexts, I dissent.” The Hill v. Colorado Supreme Court decision was based on a suit filed by a group of pro-lifers who contended that their right to free speech was restricted by a buffer zone law that held it unlawful to demonstrate within eight feet of a person who is within 100 feet of an abortion facility, unless that person consents to the sidewalk counseling.
On the specific question of abortion, Scalia schooled CNN’s Piers Morgan, saying, “My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it.”
We understand that Justice Scalia was a jurist whose opinions while he served the people of this nation on the Supreme Court contributed richly to the true meaning of the Constitution. However, I hasten to point out, with complete respect for Scalia and his towering opinions on other matters that impact respect for life and free speech, that on the topic of abortion and the Constitution, he errs. The Preamble to the Constitution states, “We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
Our posterity are our children—born and preborn. They have always been protected by the natural law, even though seven Supreme Court Justices in 1973 exercised “raw judicial power” and ruled otherwise.
In closing, I quote Scalia’s dissent in the partial-birth abortion Supreme Court decision Stenberg v. Carhart as it shows that in the final analysis, Scalia might just actually have agreed with those of us who see that the right to life is protected in the Constitution beyond the shadow of a doubt:
The method [partial birth abortion] of killing a human child—one cannot even accurately say an entirely unborn human child—proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception” which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?) is to give live-birth abortion free rein. The notion that the Constitution of the United States, designed, among other things, “to establish justice, insure domestic tranquility . . . and secure the blessings of liberty to ourselves and our posterity,” prohibits the states from simply banning this visibly brutal means of eliminating our half-born posterity is quite simply absurd.
Please pray for the happy repose of the soul of Supreme Court Justice Antonin Scalia and for his grieving family.