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 abandon…"
Justice Scalia also wrote a scathing dissent in Stenberg v Carhart , the case that struck down Nebraska's ban on the gruesome practice of partial-birth abortion and similar prohibitions in 29 other states. In his dissent, Justice Scalia expressed his hope that "one day, Stenberg will be assigned its rightful place in the history of this Court's jurisprudence beside Korematsu and Dred Scott." This statement is strong indeed considering that these infamous cases allowed humans rights abuses such as slavery and the imprisonment of entire people groups.
Fortunately, Justice Scalia did not have to wait very long for an opportunity to correct the travesty of the Stenberg decision.
In direct response to Stenberg, Congress passed the Partial-Birth Abortion Ban of 2003. In 2007, the Supreme Court upheld the federal ban in Gonzales v. Carhart. Justice Scalia joined in the majority opinion, as well as Justice Thomas' concurrence arguing that "the Court's abortion jurisprudence … has no basis in the Constitution."
We can only imagine how Justice Scalia would have responded to the Court's latest abortion case, Hellerstedt v. Whole Women's Health, which overturned health and safety standards for abortion facilities. But it is certain that his voice was sorely missed.
Replacing Justice Scalia will be a daunting challenge, but it seems only fitting that it is Judge Gorsuch who will seek to follow in the footsteps of a man he called "a lion of the law: docile in private life but a ferocious fighter when at work, with a roar that could echo for miles."
Attorney Deanna Wallace is staff counsel at Americans United for Life.
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