U.S. Supreme Court Justice Antonin Scalia, who passed away Saturday (February 13, 2016), believed that the role of the Court is to faithfully interpret and apply the law as it actually is—not as the Court wants it to be. Making law and policy is the job of the elected branches of government. Judges should not be legislators.
Supreme Court Justice Antonin Scalia
U.S. Supreme Court Justice Antonin Scalia, who passed away Saturday, believed that the role of the Court is to faithfully interpret and apply the law as it actually is—not as the Court wants it to be. Making law and policy is the job of the elected branches of government. Judges should not be legislators.
That’s why Scalia took the position he did on abortion and the Constitution. The Constitution simply does not require, as the Court mistakenly ruled in Roe v. Wade (1973), a nationwide policy of abortion on demand. In his dissenting opinion in Planned Parenthood v. Casey (1992), which upheld the “central holding” of Roe, Scalia explained:
The issue is whether [abortion] is a liberty protected by the Constitution of the United States. I am sure it is not. I reach that conclusion … for the same reason I reach the conclusion that bigamy is not constitutionally protected—because of two simple facts: (1) the Constitution says absolutely nothing about it, and (2) the long-standing traditions of American society have permitted it to be legally proscribed.
Therefore, Scalia concluded,
“The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.”
Dissenting in Stenberg v. Carhart (2000), which struck down a state law banning partial-birth abortion, Scalia wrote:
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.
Hodgson v. Minnesota (1990) dealt with the details of Minnesota’s parental notification law. In a complicated and divided outcome, the Court upheld the law as long as there is a judicial bypass option (Scalia would have upheld the law regardless). Scalia noted:
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.
Nor does anything in the Constitution prevent states from prohibiting assisted suicide or protecting against the dehydration and starvation of medically vulnerable patients. In Cruzan v. Missouri Department of Health (1990), Scalia wrote:
American law has always accorded the State the power to prevent, by force if necessary, suicide … [T]he point at which life becomes “worthless,” and the point at which the means necessary to preserve it become “extraordinary” or “inappropriate,” are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory.
Scalia was part of the unanimous decisions in Vacco v. Quill and Washington v. Glucksberg (1997), which held that there is no right to assisted suicide. In his dissenting opinion in Gonzales v. Oregon (2006), Scalia argued that the Attorney General is allowed, under federal law, to prevent the use of drugs in Oregon for assisted suicide:
Unless we are to repudiate a long and well-established principle of our jurisprudence, using the federal commerce power to prevent assisted suicide is unquestionably permissible. … If the term “legitimate medical purpose” has any meaning, it surely excludes the prescription of drugs to produce death.
In Roe v. Wade and subsequent decisions, the Court usurped the authority of the American people and their elected representatives to determine abortion policy—and 58 million abortions have been the result. Some people want the Court to do the same with assisted suicide.
To prevent that from happening—and to reverse Roe, allowing for greater protection for unborn children and their mothers—we desperately need more Supreme Court justices like Antonin Scalia.
Editor’s note. Paul Stark is Communications Associate for Minnesota Citizens Concerned for Life, NRLC’s state affiliate.
More End of Life Issues Articles
A Primer on Euthanasia and Assisted Suicide
QUESTION: What’s the difference between voluntary euthanasia and non-voluntary euthanasia? ANSWER: Voluntary euthanasia involves a competent and stated desire of someone to have...
December 14th, 2015
Life Worth Living
On June 22, 2015, Simona De Moor of Belgium was euthanized. She was a healthy 85 year old who saw her death as her only reprieve from the grief of losing her daughter several...
October 21st, 2015
Q&A on Importance of Signing a Medical Directive
QUESTION: Why is it important to have a medical directive statement? ANSWER: We at CLR recommend every adult sign a medical directive statement regardless of his or her current health...
August 26th, 2015
Q&A on Treatment Options and Medical Directives
QUESTION: It’s been years since the death of Terri Schiavo. Shouldn’t we just leave this in the past? ANSWER: Few cases created more emotional response than the Terri Schiavo...
August 26th, 2015
Q&A on Life Support
QUESTION: What does the Bible say aboutkeeping someone on life support if they are seriously injured in an accident? I know that the Bible says to preserve human life so I am guessing...
November 22nd, 2013
When Life Holds No Dignity
Advocates for assisted suicide have often marched under the “death with dignity” banner, but what does that word, “dignity,” mean? When did we get it, and how...
June 12th, 2013
Pro-Life Bible References
God is the creator of life Genesis 1:27 - "So God created man in his own image, in the image of God he created him, male and female he created them." Job 33:4 - "The...
February 5th, 2013
Things to Consider
Latest Issue of Clearly Caring Magazine Available
Latest Issue: June 2016 Clearly Caring magazine is the official publication of Christian Life Resources and serves as an important tool for staying current on various life and family...