December 27, 2007

Scalia and Abortion

Now the Senate is looking for moderate judges, mainstream judges. What in the world is a moderate interpretation of a constitutional text? Halfway between what it says and what we'd like it to say?” (Supreme Court Justice Antonin Scalia)

Justice Scalia is one of those rare individuals in federal government who takes seriously his oath to uphold the Constitution of the United States. Even so, I would not characterize Justice Scalia as a strict constructionist in all things constitutional. It appears that on a reversal of Roe v. Wade, Justice Scalia would argue for state’s rights and return the abortion issue to the states.

Some pro-lifers prefer this situation over the current one with Roe. On the other hand, in the present moral and cultural climate, few states would ban abortion. Nonetheless, the legal question will remain: Is abortion constitutional? I think not.

As I discussed in previous posts this month, protection of the unborn comes within the scope of the Due Process Clause of the 14th Amendment (“nor shall any State deprive any person of life, liberty, or property, without due process of law…”). Justice Blackmun showed his awareness of this fact in Roe when he stated the following:

"The appellee and certain amici argue that the fetus is a "person" within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant's case, of course, collapses, for the fetus' right to life would then be guaranteed specifically by the Amendment. The appellant conceded as much on reargument..." (IX, A)
Roe v. Wade

Justice Blackmum, however, ignored the common meaning of “person” to avoid the obvious implications of the 14th Amendment.

Why then would Justice Scalia presumably return the abortion issue back to the states rather than explicitly grant constitutional personhood to the unborn? I surmise that Justice Scalia has unwittingly bought into the principle of depersonalization of the unborn.

Returning the abortion issue to the states is a non-solution. It is an unconstitutional maneuver, and states that fail to ban abortion would inevitably face legal challenges. The abortion problem will then end up full circle at the U.S. Supreme Court, where correct decisions about the personhood of the unborn and Due Process should have originally been made.

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Recommended link:
Human Personhood Begins at Conception by Peter Kreeft

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