As the Senate holds hearings this week to confirm Antonin Scalia's successor, it is important to reflect on his legacy. In a 2016 lecture, Judge Neil M. Gorsuch described hearing about Scalia's unexpected death while on a ski trip, "I immediately lost what breath I had left, and I am not embarrassed to admit that I couldn't see the rest of the way down the mountain for the tears." I shared this breathless, teary reaction, and it was no doubt experienced by many men and women across our nation who greatly admired and respected Justice Scalia's personal and judicial principles. Justice Scalia's legal legacy will be pivotal in shaping our legal traditions for many decades to come, especially when considering abortion-related cases.
The first abortion case considered by Justice Scalia was Webster v. Reproductive Health Services, which concerned a 1986 Missouri statute dealing primarily with funding issues, as well as a requirement that physicians test for the viability of an unborn child after 20 weeks gestation. The Court upheld the entirety of the Missouri statute, but declined to address whether Roe v. Wade should be re-evaluated, something Scalia clearly felt was necessary: "The outcome of today's case will doubtless be heralded as a triumph of judicial statesmanship. It is not that, unless it is statesmanlike needlessly to prolong this Court's self-awarded sovereignty over a field where it has little proper business…"
Justice Scalia would continue to urge the Court to remove itself as a self-appointed National Abortion Control Board and return the abortion issue to its proper venue: state legislatures. He articulated this view again, in Ohio v. Akron Center for Reproductive Health, in which the Court upheld parental consent requirements for minors seeking abortions:
… the Constitution contains no right to abortion. It is not to be found in the longstanding traditions of our society, nor can it be logically deduced from the text of the Constitution - not, that is, without volunteering a judicial answer to the non-justiciable question of when human life begins ... The Court should end its disruptive intrusion into this field as soon as possible.
Justice Scalia's fiery dissent in 1992's Planned Parenthood v. Casey responded to the plurality's claim that overturning Roe v. Wade would "seriously weaken the Court's capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law," by writing, "In my history book, the Court was covered with dishonor and deprived of legitimacy by Dred Scott v. Sandford, an erroneous (and widely opposed) opinion that it did not abandon…"
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01.16.2025