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."