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“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.”

Feb 19, 2016

Editor’s note. We are running three posts today about Supreme Court Justice Antonin Scalia, who passed away last weekend. The following are excerpts from the dissent authored by Justice Scalia in the 2000 Supreme Court’s Stenberg v. Carhart decision in which the Court struck down Nebraska’s ban on partial-birth abortion. Seven years later, in Gonzales v. Carhart, the High Court upheld the federal ban on partial-birth abortion. Internal cross-references have been omitted.

Justice Antonin Scalia

Justice Antonin Scalia

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 [which upheld the wartime internment of American citizens of Japanese descent] and Dred Scott. The method of killing a human child…proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion. And the Court must know (as most state legislatures banning this procedure have concluded) that demanding a “health exception”–which requires the abortionist to assure himself that, in his expert medical judgment, this method is, in the case at hand, marginally safer than others (how can one prove the contrary beyond a reasonable doubt?) –is to give live-birth abortion free rein. …

While I am in an I-told-you-so mood, I must recall my bemusement, in [the 1992 case of Planned Parenthood v.Casey], at the joint opinion’s expressed belief that Roe v. Wade had “call[ed] the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution,” and that the decision in Casey would ratify that happy truce. It seemed to me, quite to the contrary … and that, “by keeping us in the abortion-umpiring business, it is the perpetuation of that disruption, rather than of any Pax Roeana, that the Court’s new majority decrees.”

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 let them decide, State by State, whether this practice should be allowed. …

Categories: Supreme Court