Scalia on Abortion

Since Framers didn’t allow abortion, the issue is settled

Edwin Meese, Reagan’s attorney general, provided a framework for conservative critique when he called for a “jurisprudence of original intention.” The words of the Constitution, he said, meant only what the authors of the document thought they meant; the meaning of the words did not evolve over time. This was an unprecedented view. Most justices thought that the words of the Constitution were to be interpreted in light of a variety of factors, beyond just the intentions of the framers.

The debate over original intent amounted to a proxy for the legal struggle over legalized abortion. No one argued that the authors of the Constitution intended for their words to prohibit states from regulating a woman’s reproductive choices; to Scalia, that ended the debate over whether the Supreme Court should protect a woman’s right to choose. If the framers did not believe that the Constitution protected a woman’s right to an abortion, then the Supreme Court should never recognize any such right either.

Justice Scalia believed if a ‘right’ was not specifically called out in the Constitution, the Supreme Court had no business deciding an issue. The Supreme Court does not make law and any SCOTUS decision should not be used as a basis for future legislation. Rather, Scalia believed legislatures should show  some backbone in the controversial issue of abortion and legislate . 

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