Theory Behind Roe “Does Not Make Any Sense”

“Now, regardless of what my views as a Catholic are, the Constitution says nothing about it.”

The Late Supreme Court Justice Antonin Scalia

By Dave Andrusko
National Right to Life

Editor’s note. Everyone is figuratively on pins and needles in anticipation of Monday’s expected announcement by pro-life President Donald Trump who he will nominate to replace Justice Anthony Kennedy, who is retiring.

As we all know this will be President’s second opportunity to fill a vacancy. In 2017, he selected Neil Gorsuch, proving by that decision that he was serious about choosing justices in the mold of the late great Antonin Scalia whom Gorsuch replaced.

Elsewhere this week, and again today, we’ve posted about the abomination that was and is Roe v. Wade. Justice Scalia was not on the Roe court, but he came to be Roe’s most articulate and forceful critic.

By way of memorializing his great contributions to exposing Roe’s absurd underpinnings, I’d like to repost a story I wrote a few years ago about an interview Justice Scalia gave CNN. He was, as always, brilliant. The link to You Tube that shows the exchange still works but not the link to the Kathleen Jean Lopez’s transcript.

There I was, peacefully switching back and forth between three sporting events when I happened upon Piers Morgan’s show on CNN. He was interviewing Supreme Court Justice Antonin Scalia.

While I thoroughly enjoyed the portion that remained, I knew Morgan must have asked Justice Scalia about Roe v. Wade.

Kudos to Kathleen Jean Lopez, editor-at-large of National Review Online, who put the entire Roe/abortion exchange up online.

Let’s talk about just three of many fascinating points. First, in only a few sentences, Justice Scalia exposes the soft jurisprudential underbelly of Roe. As he put it, “[T]he theory that was expounded to impose that decision [Roe] was a theory that does not make any sense.” Ah, yes!

Second, Morgan asks Scalia if thinks abortion should be illegal. Justice Scalia responds with the first of several important distinctions: “I don’t have public views on what should be illegal and what shouldn’t. I have public views on what the Constitution prohibits and what it doesn’t prohibit.”

It would be amusing (if the subject weren’t so important) to watch Morgan try to “shame” Scalia into agreeing that abortion ought to be legal. After an incoherent foray into what the rights of women were when the Constitution was written, Morgan takes a second swing:

“But when women began to take charge in the last century, of their lives and their rights and so on, and began to fight for these, everybody believed that was the right thing to do, didn’t they? I mean, why would you be instinctively against that?”

Get it? “Everybody” agrees abortion should be legal—at least everybody who is anybody—so why would Justice Scalia “instinctively” go the wrong way? There follows a second keen distinction, one that people like Morgan either cannot understand or refuse to understand. Scalia says

“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. It leaves it up to democratic choice.

“Some states prohibited it, some states didn’t. What Roe v. Wade said was that no state can prohibit it. That is simply not in the Constitution. It was one of those many things — most things in the world — left to democratic choice. And — and the court does — does not do democracy a favor when it takes an issue out of democratic choice [Morgan interrupts, but the rest of Scalia’s answer is] simply because it thinks it should not be there.”

Third, Morgan, as is his custom, frontloads his question about the impact of Scalia’s Catholic faith on his jurisprudence by attempting to presuppose/preempt Scalia’s answer.

National Right to Life article continues here