Scalia sees no abortion right in Constitution

Buffalo News ^ | 03/14/2002 | STEPHEN WATSON

[wwcc]

Supreme Court Justice Antonin Scalia, during a luncheon in Buffalo on Wednesday, re-emphasized his view that women don't have a constitutional right to an abortion. His belief flies against the court's majority decision in the 1973 case Roe v. Wade, which found a constitutionally protected right of privacy that covers abortion.

"My votes in abortion cases have nothing to do with my pro-life views," Scalia said after his speech at the Hyatt Regency Buffalo. "They have to do with the text of the Constitution. And there is nothing, nothing in the Constitution that guarantees the right to an abortion."

At times flashing a prickly wit, Scalia also criticized the process for selecting new Supreme Court justices as being highly political today.

And he defended the court's 5-4 decision in the 2000 presidential election that stopped ballot counting in Florida and handed victory to George W. Bush.

The recurring theme throughout Scalia's 40-minute speech, and in answers to audience questions, was the importance of a strict, limited interpretation of the Constitution.

"It says what it says, and it ought not to be twisted," he said.

Scalia, who is the foremost conservative member of the Supreme Court, was appointed by President Ronald Reagan in 1986. .

Scalia devoted the bulk of his speech to the clauses in the First Amendment that ensure government may not restrict people's religious practices, nor impose religion on anyone.

Judicial rulings on those clauses - and the entire Constitution - must be based on their text, the authors' original intent or historical practice, he said.

In quoting George Bernard Shaw - using a phrase later appropriated by Robert F. Kennedy - Scalia said those who believe in judicial reshaping of the Constitution "dream things that never were."

The appropriate way to deal with an issue that demands updating judicial precedent or the Constitution is by legislative action or, where appropriate, a constitutional amendment.

"We have an enduring Constitution, not a living one," Scalia said.

After his prepared remarks, Scalia took questions and delved into several hot-button issues.

He dismissed the idea that abortion is a constitutionally protected right, but he also said the Constitution doesn't explicitly prohibit abortions, either. He indicated the issue ultimately should be decided by a constitutional amendment.

The fight over abortion rights already is heating up, as pro-choice groups dig in for a battle whenever Bush gets to make a Supreme Court appointment.

Picking up that theme, Scalia blamed the the bitter political fights over court nominations on the belief that judges are free to rethink the Constitution.

"Every time you're selecting a Supreme Court justice, you're conducting a mini-plebiscite on what the Constitution ought to mean," he said.

Scalia defended the court's decision in the 2000 balloting debacle, saying it properly returned authority in the matter to the Florida Legislature.

Organizers said 930 tickets were sold for the event, sponsored by the Chabad House of Western New York and the University at Buffalo Law School.

[liberallarry]

I have no more difficulty than anyone else in disguishing right from wrong - which is not an easy thing, by the way. One of life's great pleasure is reading the Torah - where the Law is interpreted.

I strongly disagree that there is no private morality. It's called conscience and it is the essence of humanity. How else would you justify Martin Luther's actions, for example? Conflict, you to, rightly deserve. And whether you deserve it or not that's what you get. That's what we all get.

[Diamond]

Almost anything is better than abortion.

I find your comments fascinating. Why do you say that almost anything is better than abortion? What's wrong with it?
You stated earlier that there's a real dispute on when a 'fertilized egg' becomes a person? This raises a couple of questions in my mind:
For what period of time do you think that the ontological designation, 'fertilized egg' appropriatly applies to a new human being?
Since you are apparently asserting the distinction, what's the difference between a human being and a person? When did this distinction first appear?
I always thought that human beings were personal beings. That's just the kind of beings humans are. What other kind of being could they be? Personhood is one of the properties of being human, just like volume is one of the properties of a cube. In the same way that there is no such thing as a cube without volume, there is no such thing as a human being who is not a person.

My preference is for ever better contraceptives, morning after pills, and the compromise I suggested earlier: early pregnancy testing, and legal, penalty-free abortions only in the third, fourth, or early fifth month, with severe penalties thereafter (with caveats for difficult and unusual situations).

Why the time period restrictions of third, fourth, or early fifth month for penalty-free killing of the 'fertilized egg'? What does 'early fifth' month mean? The tenth day of the month? The fifteenth? Presumably it can't mean anything later that 15 and 1/2, otherwise it couldn't properly be called the 'early' part of the month. So if it's say, the 10th, and the abortion is committed on the 11th, then by what legal or moral principle do you justify punishment or non-punishment over the difference of one day?

As for what constitutes a human being. There too we differ. I do not find a fertilized egg to be one. My view is the transition is gradual, and does not complete itself until maturity. When one decides to call a mass of cells a living human being is somewhat arbitrary - but if one is going to terminate a pregnancy sooner is much, much better than later.

Ontologically and scientifically speaking, it is the height of irrationality to try to describe a human fertilized egg as anything other than a living human being. Your functionalistic assignment of humanity to some ill-defined stage of 'maturity' is what is abritrary, and morally is no different than the assertion that any human being who has not reached the great-grandparent stage of development is not fully human.

But again, you say if one is going to 'terminate a pregnancy' sooner is much, much better than later. First, what do you mean by "terminate a pregnancy"? I don't know about you, but I terminated my mother's pregnancy by being born. But anyway, WHY is 'sooner' much better than 'later'? Why, if the 'fertilized egg' is not a person, or a human being, or if that designation can just be subjectively assigned by whomever, whenever, then why in the world is 'sooner' 'much better than later'? If there's nothing wrong with the killing, what difference does it make when it occurs?

Cordially,

Cordially,

[ArGee]

So does this mean that an unborn child is "property?"

Of course not, no more than a slave is "property." Yet this is the vision of the left by which they hold the right to abortion, just as it was the vision of those who held the right to slavery.

If you want to deny someone their rights, first deny their humanity.

Shalom.

[Hajman]

I don't think it's factually accurate. I think teaching abstinance is about as effective as teaching the dangers of smoking, drinking, and drugs is to stopping those abuses. It works well only when dealing with those least at risk (Those pre-disposed by background and temperament to accepting it).

Possibly. But the real question is, does it affect enough people to be worthwhile? I'd have to say 'yes'. Studies done on this says 'yes' (but you don't have to take my word for it. I'm not sure where to find the studies off the top of my head, but if I run across one, I'll try to remember to ping you on it).

None the less it should be part of every sex education program. Almost anything is better than abortion.

Now that I'll agree with.

My preference is for ever better contraceptives, morning after pills, and the compromise I suggested earlier: early pregnancy testing, and legal, penalty-free abortions only in the third, fourth, or early fifth month, with severe penalties thereafter (with caveats for difficult and unusual situations).

Actually, by the start of the second trimester, the fetus' development is far enough along to observe all major life functions developed and operating. Even if a compromise were to be made, I would have to say anything past the first trimester would be considered too late.

As for what constitutes a human being. There too we differ. I do not find a fertilized egg to be one. My view is the transition is gradual, and does not complete itself until maturity. When one decides to call a mass of cells a living human being is somewhat arbitrary - but if one is going to terminate a pregnancy sooner is much, much better than later.

• 1) What do you mean when you say 'human being'? Is it in the biological or philosophical sense? If you mean the biological term, then there's no question that even a just-fertilized human cell is a human being, for anything that can fall under the classification of Homo Sapien can be considered a human being. Note that the classification is independent upon current development level, and dependent on the end state of the organism, if allowed to continue to it's final state (in humans that would probably be 'adult'). Otherwise children couldn't be considered Homo Sapien, and therefore couldn't being considered a human being. This is an absurd conclusion, so we need to, by necessity leave development level out of this particular definition. If you mean in the philosophical sense, then I would have to dissagree with you. Of course, this would require more conversing on this particular subject to see why.
  
  
• 2) What do you mean by 'life'? According to the general definition, life is that which has the ability to develops or sustain development, breaths, uses and intakes nutrients, and expels waste products. These don't have to be done continuously, but only when required. Otherwise if you held your breath for 30 seconds, one could claim you're not alive for those said seconds. This is an absurd argument, so by necessity we need to stick the ability being used when required. Some definitions add the ability to reproduce in with the definition of life, but technically the ability to reproduce is only required to continue life to the next organism, not to sustain or develop current life. So I degress on this point. A freshly fertilized cell, embryo, zygote or fetal stages all develop. They all take in or use good air (breathing. In this case, oxygen). The fertilized egg is oxygen saturated, so the zygote and embryo can use good air. They all intake nutrients, and expel wastes (when needed). The fertilized egg is also nutrient saturated, so again the zygote and embryo can use nutrients. When the embryo/fetus is attached to the womb, it can intake air (breath) and intake nutrients through the umbilical cord. Why would we consider taking oxygen through the umbilical cord 'breathing'? Because the definition needs to apply generally. We recognize that plants and fish breath, but they don't use lungs, and each uses a different mechanism for breathing (plants absorb air through it's leaves, fish filter out air from the water through their gills). If we required lungs to breath, then we couldn't say plants or fish breath, due to the necessity that we need to be able to apply a life function definition generally. This is an absurd argument, so we need to stick with the natural intake of good air as breathing.

The only conclusion I can come up with objectively is that even a freshly fertilized human cell (which starts developing immediately) is a living human being. However, if you take the philosophical stance with the term, then the question becomes when we consider the human being a 'person'.

The debate is really about sexual license. Remove unwanted pregnancy and sexually transmitted diseases from the arena and resistance to license collapses - and with it the whole religious structure built on that resistance.

I've noticed, from personal experience, that a great deal of abortions are desided upon after-the-fact. Contraceptives may help (and those are even under debate), but it won't do a thing for those that deside later that they don't want to be burdend with the baby. It just pushes the same problem back a ways.

As for where we're headed, personal, imho, we need to recognize the value of human life, or we'll slide down the slippery slope into the boiling mud pit that awaits on the bottom (and if you've ever had the pleasure of smelling one, they stink worse then skunks).

-The Hajman-

[liberallarry]

I thank you for your comments. Always nice to have a real discussion. Something is always gained.

I think you've not read the earlier comments (all 300+ of them!) because I addressed some of your points before. I'll try to summarize.

Abortion is not a good thing. At some point it becomes, without a doubt, the killing of a human being. But killing human beings is something human beings have been doing forever. They justify a lot of it. I think we do better if we frame the debate in practical terms - a lesser of two evils situation. (For more read the earlier discussion).

What is a living human being? Seems simple but it isn't. Brain dead is dead. A being without a head, organs, or the ability to live on its own is not what most people would call human. I find it more realistic to say a fertilized egg grows into a fetus which grows into a baby which matures into a human being with all its powers. There is no definite point at which the transformation occurs - which is why I say the choice is somewhat arbitrary and why I think early abortion is better than late. As for the specific months mentioned - that refers to a compromise I proposed. Any woman who misses two successive periods would undergo mandatory pregnancy testing and have two months to seek a legal abortion, if she so chose. That was the earliest I could think of.

Now all of this may seem quite arbitrary to you both philosophically and morally - but my reading of history is that's the way it really is.

[Frumious Bandersnatch]

Oh I agree, but the only way I can see that we have guaranteed privacy (via property rights) through the constitution is if a woman totally owns the unborn child.

[Diamond]

Thank you for your reply.

I've read the thread. But I do not comprehend your position. You acknowledge that abortion is killing, and you also acknowledge that at some point it is the killing of a human being. The problem I have understanding your position is twofold:

First, let's suppose for a moment that there were real uncertainty about what constitutes a living human being. It seems to me to be your position in effect that because there is uncertainty, then killing should be morally and legally allowable. Let's say you and I are in the same neck of the woods and you are deer hunting, and I am just out on my own, going for a walk in the woods across a clearing from you. You see something moving in the woods across the clearing, but you don't know if the target in your sights is a human being or a deer. You don't know what it is. What is your appropriate response, since you are in doubt about the identity of the moving object. Do you just go ahead and fire because of your uncertainty? If you had a neighbor with you, would you tell him it's ok to just go ahead and fire? Or is the appropriate thing to do to excercise caution when you don't know if your target is a human being or not? If you truly do not know, out of caution, and reverence and respect for human life, then you will not pull the trigger. If you do pull the trigger, and the bullet strikes and kills me, then you have shown a callous and wanton disregard for human life.

Now, I realize that you have already passed the fifth month of your mother's pregnancy so it is easy for you to forget where you came from and consign other human-beings-in-fact who have not yet reached that level of maturity to death because of your own uncertainty as to their humanity. But that seems to me just like not seeing anything wrong with pulling the trigger in the woods when you don't know if the target is a deer or a human being. That is the first thing I do not comprehend.

The second thing I do not comprehend is your use of words in the sentence: "I find it more realistic to say a fertilized egg grows into a fetus which grows into a baby which matures into a human being with all its powers." In my understanding, if words mean anything, 'fertilized egg', 'fetus' and 'baby' are all subsets of the category, 'human being'. I am referring here to objective, scientifically and ontologically irrefutable facts that have been proven beyond cavil, beyond any reasonable doubt for over 150 years. While there are many things of which we human beings are uncertain, this is not one of them. So it simply seems like a category mistake to say that these mature into a human being for the simple reason that they all are already members of that class.

You are right that killing has been going on for a long time in history. There have always been people who did not regard others as being on the same level of humanity as they, but I don't see any reason to tolerate or accomodate it, or even hideously promote it under the rubric of 'population control.' If something is wrong with abortion killing, then EVERYTHING everything is wrong with it. If nothing is wrong with it, then it is no worse that clippings one's fingernails.

Cordially,

[ArGee]

Oh I agree, but the only way I can see that we have guaranteed privacy (via property rights) through the constitution is if a woman totally owns the unborn child.

She doesn't. And her privacy ends when she wants to violate that child's rights by, say, aborting it.

Now you're right in that if she wants to try to abort the child herself within her own four walls there won't be much we can do about it in advance without some solid evidence that she is about to act. But then, property rights always present us with that delemma.

Shalom.

[liberallarry]

What constitutes a human being?

Even from a biological point of view one can debate the question - since all classifications are human constructs. We have something of that question actually being debated when we discuss our several million year old ancestors.

But I don't want to get side-tracked. I can grant you the humanity of a newly fertilized egg and try to make my point using a slightly different argument. A newly fertilized egg is not a late term fetus. A late term fetus is not a 2 year old child. A child is not a teen-ager. A teen-ager is not a man. We have always recognized these distinctions and many more by treating individuals in these classes in different manners. How we do so depends on race, culture, social class, etc. It's our choice and always has been.

I've always been surprised at how different the past is from the present - and in what surprising ways. Europeans still practiced crucifiction at the time of the Napoleonic Wars. They also sold their children. Slavery was legal in America through the 1860's and lynching much engaged in thereafter. Europeans currently regard us as barbaric for continuing to use the death penalty. And so on.

I think it is better for us to legalize the least destructive form of abortion currently possible than it is to continue as we are - or return to the days of totally illegal abortion.

I don't have any ready solutions for those who act irresponsibly - or for many other of life's problems. I don't find people who are pro-abortion to be uniformly disrespectfull of life or anti-abortion the opposite. Other values also count.

[liberallarry]

Actually, by the start of the second trimester, the fetus' development is far enough along to observe all major life functions developed and operating. Even if a compromise were to be made, I would have to say anything past the first trimester would be considered too late.

Then I would be for mandatory pregnancy testing of all women who miss a single period - or mandatory monthly testing of all sexually active women who are even contemplating an abortion. Anything to reduce the destructiveness of the procedure. As I said when I suggested compromise in my earlier post - it's just an idea, just a beginning.

[liberallarry]

I hope that my reply to Hajman in Posts #369 and 370 also constitute a reply to you.

If something is wrong with abortion killing, then EVERYTHING everything is wrong with it. If nothing is wrong with it, then it is no worse that clippings one's fingernails.

Here perhaps is one of our major points of difference. I believe it is, under many conditions, worse to bring a fetus into this world - results in more misery and death - than the opposite. So - as I said at the very beginning of my argument - we have a lesser of two evils situation. Let each couple decide for themselves, at least to some extent.

It's not a good situation. There will be abuses, but there are many such. People drive around in Rolls' while others starve, for example. Since I am not religious and am not bothered by the lack of absolutes and the shifting sands we seem to live on, I find my position quite reasonable. I can see why others wouldn't, but I still hope we can find some common ground where we can all live comfortably.

[Hajman]

I've always been surprised at how different the past is from the present - and in what surprising ways. Europeans still practiced crucifiction at the time of the Napoleonic Wars. They also sold their children. Slavery was legal in America through the 1860's and lynching much engaged in thereafter. Europeans currently regard us as barbaric for continuing to use the death penalty. And so on.

Yes, and they were all wrong and shouldn't have happend in the first place.

I think it is better for us to legalize the least destructive form of abortion currently possible than it is to continue as we are - or return to the days of totally illegal abortion.

The least destructive form of abortion is illegal abortion. All others murder a human. Murdering a child is no less destructive then murdering an adult. Comparison holds for baby-child, fetus-baby, etc. Thinking that certain lives are worth more then others is what lead us to such things as slavery to begin with.

I don't have any ready solutions for those who act irresponsibly - or for many other of life's problems. I don't find people who are pro-abortion to be uniformly disrespectfull of life or anti-abortion the opposite. Other values also count.
Technically, pro-abortion people are uniformly disrespectful of unborn human life, else they wouldn't be pro-abortion by definition. In other words, they don't give the same value of life to a fetus as they do to a child or adult, thus the value of life is lowered for a particular group.

Then I would be for mandatory pregnancy testing of all women who miss a single period - or mandatory monthly testing of all sexually active women who are even contemplating an abortion. Anything to reduce the destructiveness of the procedure. As I said when I suggested compromise in my earlier post - it's just an idea, just a beginning.

Pro-active applied law makes for bad law, especially in this case. One shouldn't have to watch everyone because some might do an abortion. Just watch those that attempt it, or would be suspected to attempt it, as we do with any other crime (or try to). We simply don't need nanny-police watching people every moment of their lives because some may commit a wrong. This goes against the concept that we're innocent until proven guilty. If you illegalize it, then you don't have a nanny-state watching innocent people, and you have a way to deal with those that commit the abortion. If applied completely, your idea may work, but it would at the cost of our freedom, and that cost outweighs the benifits. In other words, it wouldn't be worth it.

-The Hajman-

[Hajman]

Here perhaps is one of our major points of difference. I believe it is, under many conditions, worse to bring a fetus into this world - results in more misery and death - than the opposite. So - as I said at the very beginning of my argument - we have a lesser of two evils situation. Let each couple decide for themselves, at least to some extent.

There's one big problem with that...you can't predict the quality of life of a person overall by using the physical conditions the person is born into. Very well-off people turn out to be totally depressed and commit suicide, and other people that arn't well off at all turn out to do great things. Also, the happiness of a person is fairly independent upon that person's living conditions, making your argument even weaker. It just isn't a very realistic solution, and just about kills any degree of objectivity in it, for without the ability to accurately predict the situation, the determination is made arbitrarily.

It's not a good situation. There will be abuses, but there are many such. People drive around in Rolls' while others starve, for example. Since I am not religious and am not bothered by the lack of absolutes and the shifting sands we seem to live on, I find my position quite reasonable. I can see why others wouldn't, but I still hope we can find some common ground where we can all live comfortably.

Any many of those in the Rolls' can be suicidal and depressive, while those that go hungry can be content with their family, apart from the lack of food. Life conditions don't necessarily determine life contentment. In fact, many times it's the opposite you would expect, if you consider a direct link between quality of life and happiness in life. As for your relative values, those don't work very well since they're not objective (and if you wonder why I think that, it's because the very definition of relative values is that they could be different for each person, and so they're pretty much arbitrary when applied).

-The Hajman-

[liberallarry]

The least destructive form of abortion is illegal abortion.

I would dispute that with you on factual, historical grounds.

For the rest - it'll have to wait until later. I'm tired, I worked all morning, it's sunny and beautiful outside, and I need a break. In addition to being technically disrespectful of life I'm something of a hedonist. :)

It's been a great pleasure. A luxury, even.

[Hajman]

The least destructive form of abortion is illegal abortion.

I would dispute that with you on factual, historical grounds.

I would wonder why. There were less fetal deaths overall when abortion was illegal, and modern abortion still does high damage, physically and emotionally to the mother, occassionally killing the mother.

I wish you a good day! :)

-The Hajman-

[H.Akston]

Sorry, but you are one screwed up dude! You are talking as if there are some evil fetuses floating around in the universe ready to pounce on some innocent woman in order to usurp her uterus for it's own development, for crying out loud.

The INNOCENT unborn human being had absolutely no choice in the matter"

You see, my dear, it's not that innocent. And you're talking as if I'm talking as if there are some evil fetuses floating around out there.

This "innocent" fetus NEEDS another life for a while. It's not that innocent. You would like to think I'm a screwed up dude, but you can not escape my reasoning. Those who try to do so invariably turn hysterical, and lash out at my character, not my reasoning.

"Need" is the claim that many liberals/looters use to justify redistribution of property.

[H.Akston]

You didn't address my argument about the 13th Amendment, and holding the mother to involuntary servitude. I clearly stated that that was also part of the Constitution that could support a finding for the right of abortion. But the strongest part of the Constitution in favor of abortion is that it is silent on it, and therefore a power reserved to the States to find or not to find it a right in THEIR Constitutions. I find your entire diatribe specious.

A woman should not be forced to carry a rapist's germination to term. That is unconscionable and you should be ashamed of yourself for supporting such a philosophy.

[H.Akston]

But regarding your absurd argument that it is merely cutting of the cord and that unless it can live independently it is not really alive. No one can live independently or if they had a choice would want to.

You intentionally misunderstand it, and take my definition of "independence" out of context. Independence from the physical sustenance of the body of another person is what I mean, when I say governmentally protectable life begins at independence.

You are therefore quite wrong, in your assertion that "no one can live independently or if they had a choice would want to."

Each person has a right to maintain the integrity of his or her own body. If one body needs another to sustain itself, then the first body has the inferior claim to life. Oh it may have a claim to life, but it has an inferior claim, because of its dependence.

The US Constitution can accommodate State-choice, and can therefore accommodate abortion.

By the way, "zigot" is spelled: zygote. It took me a while to figure out that you hadn't just made up a word, the way you made up a "duty" of a woman to carry a rapist's germ to term.

[H.Akston]

So the child pays with its life because its father is a rappist?

Suppose the mother dies in childbirth?

If that were to happen, the State that prohibited her from terminating the pregnancy would have blood on its hands, as well as the rapist. Suppose she ends up having to have a C-section and being scarred for life?

I don't think the rapist or his issue deserves to have that much power over her, in a country with a IVth, Xth, and XIIIth amendment in its Constitution.

She's got to make the decision where the integrity of her own body is concerned. Make the decision early - first trimester so there's no doubt about the unprotectibility of that life by the government, since it's utterly dependent at that time.

Pregnancy is a 9 month long ordeal that many women do not do well in, and it's unconscionable to force a woman to carry who did not even choose to carry.

The mother has a right to abort the growing fertilized egg while it is utterly and completely dependent on her body. Otherwise, she is subject to the whims of a rapist through no volition or responsibility of her own.

[Shethink13]

This "innocent" fetus NEEDS another life for a while. It's not that innocent. You would like to think I'm a screwed up dude, but you can not escape my reasoning. Those who try to do so invariably turn hysterical, and lash out at my character, not my reasoning.

So, a fetus is not that innocent, huh? Tell me, then, what dark and dasterdly plots do these evil fetuses think up to get unwilling, unsuspecting women to become their slaves?

Just curious - do you KNOW how a woman becomes pregnant? I'll clue you in - it happens when a man and a woman engage in sexual intercourse (99.99% of the time consentual). Which means the woman who ends up being host to the "parasite" actually ISSUED AN INVITATION to the fetus to "come on in". Get it?

Your "reasoning"? - BWAHAHAHAHAHAHAHAHAHA!!!!!