Justice Antonin Scalia
Dissents from the Court's Abortion Jurisprudence

 

Justice Antonin Scalia has repeatedly objected to the Court's abortion decisions since his arrival on the Court in 1987. His strongly worded dissents help illuminate the problematic nature of the Court's abortion policy in general, and its more recent rulings in particular.

Webster v. Reproductive Health Services (1989)

This case involved a Missouri law that provided various regulations on abortion (e.g., parental notification requirements for abortions performed on minors). The law was challenged as unconstitutional. At one point it seemed possible that the Court might overturn Roe in this case, but Justice Sandra Day O'Connor wanted to rule on the constitutionality of the Missouri law without reexamining Roe at all. O'Connor had a history of opposing Roe's "strict scrutiny" standard of review of abortion regulations; she had upheld numerous state restrictions on the grounds that they did not impose an "undue burden" on women seeking abortions. But in Webster she wanted to avoid an explicit ruling on Roe. She advocated a more "restrained" approach that did not attempt to answer large constitutional questions. Since the other justices were split on whether or not to uphold Roe, O'Connor had the "swing vote" and her proposed method of settling the case prevailed. Some provisions of the Missouri law were ruled constitutional; others were struck down or weakened. The Court's ruling was confusing and fractured in that different judges concurred and dissented in different parts of the opinion, and gave different reasons for their verdict.

Scalia's dissent: Scalia strongly objected to O'Connor's attempt to avoid the critical constitutional question of Roe's validity. In deciding Webster as it had, the Court had needlessly prolonged its "self-awarded sovereignty over a field where it has little proper business . . ."[1] O'Connor's claim to judicial "restraint" could not be taken seriously: Scalia pointed to decisions made that very term which had gone well beyond the immediate facts of the relevant cases, and in which O'Connor had joined (or even authored).[2]

There were compelling reasons to go beyond the immediate facts in this case as well, Scalia argued. For one thing, the Court's avoidance of the larger issues would make its abortion policies more confusing than they already were. "Ordinarily, speaking no more broadly than is absolutely required avoids throwing settled law into confusion; doing so today preserves a chaos that is evident to anyone who can read and count."[3]

By not passing judgment on Roe, moreover, the Court was inviting further pressure from the public to rule according to popular will, rather than the law. Scalia warns that the Court

can now look forward to at least another Term with carts full of mail from the public, and streets full of demonstrators, urging us-their unelected and life-tenured judges who have been awarded these extraordinary, undemocratic characteristics precisely in order that we might follow the law despite the popular will-to follow the popular will.[4]

Another reason the Court should have ruled on Roe was this: if Roe was in fact a bad decision (Scalia suggests that a majority of justices thought that it was wrong), then the harm caused by abortion was being done on false legal premises. Scalia says that while the constitutionality of abortion may be arguable, "what is not arguable . . . is that we should decide now and not insist that we be run into a corner before we grudgingly yield up our judgment."[5] Scalia expressed his frustration at the justices' unwillingness to explicitly overturn Roe even though they thought that it was wrong, and even though they were willing to weaken it by partly upholding the Missouri law. "It thus appears that the mansion of constitutional abortion law, constructed overnight in Roe, must be dissembled doorjamb by doorjamb, and never entirely brought down, no matter how wrong it may be."[6]

Hodgson v. Minnesota (1990)

This was a case involving a Minnesota abortion law that required minors to notify both parents before procuring an abortion. A curious clause in the law stated that if the Supreme Court ruled it unconstitutional, a "judicial bypass" clause would be activated according to which a minor could obtain an abortion without parental consent if she obtained the permission of a local judge. The Court had to decide: (a) if the law was constitutional without the judicial bypass clause; (b) if it was constitutional with the bypass clause. The Court also ruled on separate law that mandated one-parent notification. In a contentious decision, a plurality of justices ruled that the bypass option made the notification requirements constitutional. The Court's opinion was incredibly confused and divided-one commentator has referred to it as a "scrambled egg" of an opinion[7]-because few of the justices could completely agree on whether the law was constitutional or why. The "chaos" that Scalia had warned about in Webster had come upon the Court with a vengeance.

Scalia's Dissent: Scalia's response to the Court's decision was short and to the point. The Court's abandonment of the constitution on the abortion issue had led the justices to substitute their individual views for the law, which in turn had led to chaos.

As I understand the various opinions today: One Justice holds that two parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass . . .; four Justices would hold that the two-parent notification is constitutional with or without bypass . . .; four Justices would hold that two-parent notification is unconstitutional with or without bypass, although the four apply two different standards . . .; six Justices hold that one-parent notification with bypass in unconstitutional, though for two different sets of reasons . . .; and three Justices would hold that one-parent notification with bypass is unconstitutional. . . . One will search in vain the document we are supposed to be construing for text that provides the basis for the argument over these distinctions; and will find in our society's tradition regarding abortion no hint that the distinctions are constitutionally relevant, much less any indication how a constitutional argument about them ought to be resolved. The random and unpredictable results of our consequently unchanneled individual views make it increasingly evident, Term after Term, that the tools for this job are not to be found in the lawyer's-and hence not in the judge's-workbox. I continue to dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.

Planned Parenthood of SE Pennsylvania v. Casey (1992)

Background: Scalia was not the only judge to notice the harm the Court was inflicting on the law by its internal divisions. Lower courts found themselves in a nearly impossible situation as they tried to unscramble the Supreme Court's "egg:" they were supposed to apply the law as set by the Court's precedents, but the Court's abortion opinions had hopelessly muddled the issue. Matters came to a head in 1991 when the Third District Court ruled in Planned Parenthood v. Casey that Roe had been effectively overturned by the Supreme Court's recent decisions. Specifically, the "strict scrutiny" standard adopted by Roe no longer applied to abortion laws, because a majority of justices apparently no longer supported this standard (although thanks to O'Connor they had avoided explicitly ruling to this effect in Webster). The Third District Court ruled that a new standard was now in effect: O'Connor's "undue burden" standard. The constitutionality of state abortion laws would now be judged on the basis of the degree of "burden" they placed on women seeking abortion. If the "burden" was "undue," the law was unconstitutional. This ruling was remarkable inasmuch as the Supreme Court had never openly endorsed O'Connor's standard; but the Court's inability to articulate a sound constitutional foundation for its abortion decisions, and the justices' inability to agree on any traditional standard of review, essentially forced the lower court to appeal to a single justice's personal criterion.

In applying this new standard to the Pennsylvania law, the Third District Court ruled that some of its provisions were constitutional (e.g. parental notification requirements and a mandatory 24-hour waiting period). One provision was struck down: the requirement that married women notify their husbands of their intent to have an abortion. The court ruled that unlike the other provisions this placed an "undue burden" on women and was therefore unconstitutional. Both sides appealed the decision, and the case came before the Supreme Court.

The Supreme Court's Casey ruling: The Court's roster had changed by 1991: Justices Brennan and Marshall (both strong supporters of Roe) had been replaced by David Souter and Clarence Thomas (who were thought to be less supportive of abortion rights). Many observers expected the Court to finally overturn Roe. Initially it seemed that five justices-Chief Justice Rehnquist and Justices White, Scalia, Kennedy, and Thomas- wanted to do just that. Two others-Stevens and Blackmun-wanted to uphold Roe and strike down Pennsylvania's law entirely. In the end, O'Connor and Souter prevailed on Kennedy to join them in a "middle" opinion: they upheld what they called the "central holding" of Roe but abandoned certain aspects such as its trimester scheme. They also announced that O'Connor's "undue burden" standard was now the official yardstick to be used in abortion cases. Applying this standard to the Pennsylvania law, they agreed with Third District Court that the spousal notification requirement caused an "undue burden," but that the other provisions of the law were-at least for the time being-constitutional. This opinion was supported by Stevens and Blackmun in its upholding of Roe, and was joined by the anti-Roe justices only insofar as it upheld the Pennsylvania regulations.

The authors of the Casey plurality justified their upholding of Roe by appealing to stare decisis: the judicial doctrine of upholding precedents to preserve the law's consistency, except in rare cases. "Liberty finds no refuge in a jurisprudence of doubt," the Casey opinion began. They therefore thought it necessary to remove all doubt that the Court would uphold Roe, even though at times they implied that the 1973 decision may have been wrong. They claimed that public opposition to Roe only made it more imperative that the Court support its precedents, lest its integrity as an impartial judicial body be compromised. They maintained that Roe had resolved the national controversy over abortion and that it was their duty to adhere to it.

The Court also demanded obedience to its verdict. It called on both sides of the "controversial" issue of abortion to "end their national division and accept a common mandate" that the Court had discovered in the Constitution. It praised those who were willing to follow the Court's decisions despite disagreeing with them.

Kennedy, Souter, and O'Connor also praised Roe's conception of "liberty" which they now claimed to be defending. They wrote that "at the heart of liberty is the ability of every person to define for themselves the concept of existence, of meaning, of the universe, and of the mystery of human life."

Scalia's Dissent: The Casey decision provoked a visceral response from Scalia, who took the decision apart point by point in animated fashion. He began by saying that the issue of abortion should be resolved "like most important questions in our democracy: by citizens trying to persuade one another and then voting." The Court was right to say that certain liberties are protected from intrusive laws by the Constitution, but it is clear that not every liberty is protected: there is no constitutional right to bigamy, for instance.

The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure that it is not. I reach that conclusion not because of anything so exalted as my views concerning the "concept of existence, of meaning, of the universe, and of the mystery of human life." Rather, I reach it for the same reason I reach the conclusion that bigamy is not constitutionally protected-because of two simple facts: (1) the Constitution says nothing about it, and (2) the longstanding traditions of American society have permitted it to be legally proscribed.[8]

In Roe the Court had made a decision that was "plainly wrong"[9]-as evidenced by the fact that after twenty years no solid legal defense of the decision had been constructed. Defenders of Roe had to resort to subjective value judgments about things such as "personal choice" and "bodily integrity" to argue their case. Scalia notes that laws restrict personal choices-including very intimate choices- all the time: such as laws against polygamy and incest.[10] The justices' decision to protect the choice to have an abortion was not supported by "reasoned judgment" but "only by personal predilection."[11]

The Casey authors, of course, appealed chiefly to stare decisis rather than arguing that Roe itself was a sound decision. Scalia points out, however, that they really did not preserve Roe itself: they essentially made up a whole new opinion with an entirely new standard at its heart: the amorphous "undue burden" standard. This was not only an implicit rejection of Roe but contradicted numerous other Court abortion precedents.[12] The plurality's reliance on stare decisis was thus "contrived," a "keep-what-you-want-and-throw-away-the-rest" version that really was at odds with the whole point of stare decisis.[13]

Moreover, the "undue burden" standard was not only a pure fabrication with no legal basis, but was also inherently circular and subjective. (At least Roe was clear in the guidelines it laid down, says Scalia.)[14] "Undue burden" is a "manipulable"[15] phrase that can mean any number of different things, as shown by the fact that theCasey justices were now defining it very differently from how they had used it in previous cases.[16] The inevitable result of the use of this "rootless"[17] standard will be that more power is placed in the hands of individual judges to write their own private preferences into the law.

The inherently standardless nature of this inquiry invites the district judge to give effect to his personal preferences about abortion. By finding and relying on the right facts, he can invalidate, it would seem, almost any abortion restriction that strikes him as "undue"-subject of course, to the possibility of being reversed by a court of appeals or Supreme Court that is as unconstrained in reviewing his decision as he was in making it.[18]

What appears to be the true meaning of "undue burden" is this, says Scalia: a state may not regulate abortion in such a way that the number of abortions actually goes down. That is, laws which are actually successful in deterring women from procuring abortions are inherently "burdensome" and thus unconstitutional.

Thus, despite flowery rhetoric about the State's "substantial" and "profound" interest in "potential human life," and criticism of Roe for undervaluing that interest, the joint opinion permits the State to pursue that interest only so long as it is not too successful. . . . Reason finds no refuge in this jurisprudence of confusion.

Scalia then refutes the notion that in Roe the Court had "resolved" the national controversy over abortion, or that it would resolve it in Casey. On the contrary, Roe had made the controversy much worse by elevating the debate to the national level. Prior to Roe the matter was being argued in state legislatures, where different policies could be fitted to different populations and compromises could be reached. But Roe forced the issue to be resolved uniformly across the nation, and thwarted all attempts at compromise by mandating abortion on demand.[19] The effects were pernicious for the country and the Court itself.

Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of the disruption, rather than any Pax Roeana, that the Court's new majority decrees.

Scalia next ridicules the plurality's pompous assertion of the Court's power, found in its demand that people follow its judgments even if they disagree. "The Imperial Judiciary lives," he wrote. Kennedy, O'Connor, and Souter were presenting a "Nietzschean vision of us unelected, life tenured judges . . . leading a Volk who will be 'tested by following,' and whose very 'belief in themselves' is mystically bound up in their 'understanding' of a Court that 'speak[s] before all others for their constitutional ideals' . . . ." Scalia contrasts their self-aggrandizing portrait with the role that the Founders saw the Court playing-a "somewhat more modest role" in which judges were not activists.[20]

The political pressure that was being brought on the Court over abortion was the Court's own fault. By asserting that it could make value judgments rather than merely legal judgments, the Court had invited people to campaign for justices and judicial decisions that shared their own values.

[I]f, as I say, our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school-maybe better. If, indeed, the "liberties" protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours.

The plurality's demand that people "follow" the Court is therefore misguided, especially in view of its assertion that there are constitutional "rights" found neither in the text of the Constitution nor in the American tradition. The damage done to the Court (as exemplified by politicized and contentious judicial confirmation hearings) was of the Court's own making.[21]

Scalia concludes by comparing Casey to Dred Scott. Casey would not resolve the conflict over abortion any more than Scott had resolved the conflict over slavery. In fact, like Roe, it would make the conflict worse by continuing to prevent a democratic solution. The conclusion is obvious to Scalia: "We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining."[22]

Stenberg v. Carhart (2000)

In the 1990s many states passed laws banning a procedure called "partial-birth abortion." This procedure involved delivering an unborn child until only its head remained inside the mother, then puncturing its skull and vacuuming its brains out so the skull would collapse. The partial-birth abortion bans were quickly challenged by abortion advocates, and federal judges prevented any of them from taking effect until they had been examined by the courts. The issue reached the Supreme Court in 2000 in Stenberg v. Carhart, a case involving Nebraska's ban on partial-birth abortion. In an opinion authored by Justice Stephen Breyer, the Court ruled 5-4 that Nebraska's law placed an "undue burden" on women and was therefore (by Casey) unconstitutional. States could not ban the procedure; partial birth abortion was protected by the constitution.

Interestingly, Justice Kennedy dissented in Stenberg, although he had co-authored the Casey opinion. In his view, the Nebraska law did not cause an "undue burden" and was therefore constitutional. He felt that Stenberg went far beyond Casey in its expansion of abortion rights, and that it ignored Casey's claim that states had a "substantial" interest in protecting unborn life.

Scalia's dissent: Scalia's opening paragraph speaks for itself:

I am optimistic enough to believe that, one day, Stenberg v. Carhart will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu[23] and Dred Scott. The method 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. . . . 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.[24]

The problem was not only with the Court's reasoning in Stenberg, however; it was also with the Casey reasoning on which Stenberg relied. Scalia thus apparently disagreed with Kennedy, who disagreed with Stenberg while agreeing with Casey. For Scalia, the two decisions were-in a sense-all too consistent, because Casey's "undue burden" standard allowed for precisely the sort of subjective judgment exercised by the Stenberg Court:

In the last analysis, my judgment that Casey does not support today's tragic result can be traced to the fact that what I consider to be an "undue burden" is different from what the majority considers to be an "undue burden"-a conclusion that cannot be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment, dependent upon how much one respects (or believes society ought to respect) the life of a partially delivered fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it. Evidently, the five Justices in today's majority value the former less, or the latter more, (or both), than the four of us in dissent. Case closed. There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised-a democratic vote by nine lawyers, not on the question whether the text of the Constitution has anything to say about this subject (it obviously does not); nor even on the question (also appropriate for lawyers) whether the legal traditions of the American people would have sustained such a limitation upon abortion (they obviously would); but upon the pure policy question whether this limitation upon abortion is "undue"-i.e., goes too far.[25]

The effect of Casey was to make abortion cases purely a matter of vote-counting based on the nine justices' policy preferences. Stenberg was merely a particularly odious manifestation of this result. "Casey must be overruled."[26]

Scalia concludes by noting that public controversy over abortion and over the Court's role in deciding abortion was only going to continue:

Today's decision, that the Constitution of the United States prevents the prohibition of a horrible mode of abortion, will be greeted by a firestorm of criticism-as well it should. I cannot understand why those who acknowledge that, in the opening words of Justice O'Connor's concurrence, "[t]he issue of abortion is one of the most contentious and controversial in contemporary American society," persist in the belief that this Court, armed with neither constitutional text nor accepted tradition, can resolve that contention and controversy rather than be consumed by it. If only for the sake of its own preservation, the Court should return this matter to the people-where the Constitution, by its silence on the subject, left it-and letthem decide, State by State, whether this practice should be allowed. Casey must be overruled.[27]



[1] Missouri v. Webster Reproductive Health Servicies , 532 (Scalia, J., dissenting)

[2] Ibid., 532-33.

[3] Ibid., 535.

[4] Ibid.

[5] Ibid.

[6] 537.

[7] [7] E. Lazarus, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court (New York: Penguin Books, 2005), 435.

[8] Planned Parenthood of SE Pennsylvania v. Casey , 980 (Scalia, J., dissenting)

[9] Ibid., 984.

[10] Ibid.

[11] Ibid.

[12] Ibid., 994.

[13] Ibid., 993.

[14] Ibid. 985.

[15] 986.

[16] Ibid., 988-990.

[17] 998.

[18] 992.

[19] Ibid., 995.

[20] Ibid., 996.

[21] 1001.

[22] 1002.

[23] A 1944 case in which the Court ruled that the U.S. government could detain U.S. citizens of Japanese descent in internment camps.

[24] Stenberg v. Carhart , 954 (Scalia, J., dissenting)

[25] Ibid., 955.

[26] Ibid.

[27] Ibid., 956.

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