Antonin Scalia: 'Casey must be overruled'

In a sarcastic and scathing dissent to the Stenberg v. Carhart decision, Justice Antonio Scalia scored his colleagues for legislating from the bench, and twice stated that "Casey must be overruled."

Planned Parenthood of Pennsylvania v Casey is the 1992 decision in which the Supreme Court reiterated its commitment to abortion on demand as a constitutional right-a doctrine first promulgated in the infamous 1973 Roe v. Wade decision.

Antonin Scalia, dissenting:

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 and Dred Scott.

The method of killing a human child--one cannot even accurately say an entirely unborn human childproscribed 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.

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. . . .

There is no cause for anyone who believes in [Planned Parenthood of Pennsylvania v.] 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.

In my dissent in Casey, I wrote that the "undue burden" test made law by the joint opinion created a standard that was "as doubtful in application as it is unprincipled in origin," "hopelessly unworkable in practice," "ultimately standardless." Today's decision is the proof. As long as we are debating this issue of necessity for a health-of the-mother exception on the basis of Casey, it is really quite impossible for us dissenters to contend that the majority is wrong on the law-any more than it could be said that one is wrong in law to support or oppose the death penalty, or to support or oppose mandatory minimum sentences. The most that we can honestly say is that we disagree with the majority on their policy-judgmentcouched-as-law.

And those who believe that a 5-to-4 vote on a policy matter by unelected lawyers should not overcome the judgment of 30 state legislatures have a problem, not with the application of Casey, but with its existence. Casey must be overruled.

While I am in an I-told-you-so mood, I must recall my bemusement, in 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, that "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 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. Casey must be overruled.

Copyright Human Events Publishing, Inc. Jul 7, 2000
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