Justice Scalia – Abortion rights are not in the Constitution

U.S. Supreme Court Justice Antonin Scalia spoke with CNN's Piers Morgan last night in an exclusive interview about his book,  Reading Law, which was co-written with Bryan A. Garner.  He also talked about about Roe v. Wade and abortion rights.

Scalia does not believe that the Court's 1973 decision in Roe v. Wade was correct.  In Roe v. Wade, the Court ruled that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion.

Scalia says the theory of substantive due process in the Roe v. Wade decision does not make sense.  "My Court in recent years has invented what is called 'substantive due process' by simply saying some liberties are so important that no process would suffice to take them away.  That was the theory used in Roe v. Wade and it's a theory that is simply a lie.  The world is divided  into substance and procedure."   He said that he does not have public views on what should be illegal and what should not, but has public views on what the Constitution prohibits and does not prohibit.

Morgan pointed out that women did not have the right to vote under the Constitution when it was framed, and said that women had no rights — an idea that  Scalia scoffed.  The justice said that women had rights to due process of law, just like men, and could not be sent to jail without a trial.

"It comes back to changing times," Morgan said.  "The Founding Fathers were never going to have any reason at that time to consider a woman's right to keep a baby or have an abortion.  It would have never entered their minds."  Scalia did not understand why it would not enter their minds.  "They didn't have wives and daughters that they cared about?" he asked.

"Women began to take charge in the last century of their lives and rights and so on and began to fight for these, everybody believed that was the right thing to do" Morgan said.  "Why would you seem to be against that?"

"My view is that 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," Scalia replied.  "It leaves it up to democratic choice.  Some states prohibited it and some states didn't.  What Roe vs. Wade said was that no state can prohibit it.  That is simply not in the Constitution."


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D. Beeksma

One of the growing crowd of American "nones" herself, Deborah is a prolific writer who finds religion, spirituality and the impact of belief (and non-belief) on culture inspiring, fascinating and at times, disturbing. She hosts the God Discussion show and handles the site's technical work. Her education and background is in business, ecommerce and law.

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  • http://www.houseofbetazed.com Mriana

    Well women having the right to vote (suffrage) is not in the Constitution either, but rather was an amendment to the Constitution. Adam's wife wrote him a letter, asking him to remember the women (
    http://www.thelizlibrary.org/suffrage/abigail.htm ) , but unfortunately, the other men who created the Constitution did not see addressing women's rights in the Constitution worthwhile. None of the rights of women were considered by the Founding Fathers. In fact, unless one was a White male, they had no rights and viewed as subhuman and therefore not considered in the constitution, except as an amendment, in which even slaves were considered less than a human when counting population for elections- yet they could not vote. So female slaves had even less rights than White women, but White women were only one rung above the slave when it came to rights. They were not considered to be fully human unlike White males and just like slaves, a husband or father could beat their wives and/or daughters without repercussions from the law. A lot of things happened to women all because nothing was said about them in the Constitution nor were they even considered, except by Adams, and when he brought it up, they dismissed the idea quickly.

  • http://www.facebook.com/russell.c.crawford Russell C. Crawford

    Justice Scalia is simply wrong. The Constitution was not written to take rights from the people that they already enjoyed. And the founding fathers had the right to abortion prior to quickening. And those rights existed through out history before the Constitution. He, nor any other Justice, the federal government, the States, nor any one else, can take that right away.

  • gregoryvii

    Something that is a mortal sin should not be enshrined in any constitution at all. Common sense should tell one that.

    • http://www.houseofbetazed.com Mriana

      Who says abortion is a mortal sin? It's not the Bible, that's for sure. Read it more closely if you think it does.

    • Caribou "QUIT" Barbie™

      You once posted that "This can all be reduced to one truism. The media in America is communist, plain and simple"

      You think Obama is a communist too. Then I have to ask this. Why stay? Just leave the USA.

      • gregoryvii

        Yeah, what she said. Amerika, Love it or leave it, Comrade!

        • Caribou "QUIT" Barbie™

          Then you should leave.

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  • http://www.facebook.com/peter.olsen.121 Peter Olsen

    So much for unbiased judges. Essentially he's said "Never mind the facts, I've already made up my mind.'

    I do agree with one thing though: Roe vs Wade was a bad case. States were making the political decisions to allow abortions. Probably, had that gone on, we'd have legal abortion in all 50 states and legalization would have been a political choice, with every having a chance to participate.

    Instead we have a judicial decision imposed on all states. People who might have accepted a law passed by their state legislators or a referendum have rebelled against a tyrannical Court. Newt Gingrich, a former Presidential candidate and very bright man, had proposed that That authority is explicit in the Constitution. Once that starts it will not be stopped. (For example, consider (e.g. "The Supreme Court has no jurisdiction over the exercise of religion or acts of faith based on religion." Imagine what could be done with this license.

    Finally, we have one continuing example of the damage done by Roe vs Wade. Before the nomination of Robert Bork, confirmation hearings were boring, with witness discussing the nominee's legal credentials and the candidate discussing a combination of legal principals and platitudes. No more. Bork was pressed on many issues, including "the right of privacy" — a code phrase for abortion. He answered honestly, and eventually he was defeated (By the Demcrats). Now confirmation hearings are filled with fire and brimstone. Candidates are asked detailed questions about their political views and the answers are twisted to use against them. Nominations may be delayed or destroyed to attain some third-party end.

    Justices Alioto, Scalia, and Thomas, among others, were not appointed because of their legal scholarship (although I'm sure that it is prodigious in each case). They were appointed because they shared the President's. You can see this in the way the Republican Right fumed over Chief Justice Roberts's vote on Obamacare. The cry was "How could our man do that, the traitor." The Court is a shell of what it once was, in large part do to Roe -vs- Wade