Justice Antonin Scalia has repeatedly objected to
the Court's abortion decisions since his arrival on the Court in
1987. His strongly worded dissents help illuminate the problematic
nature of the Court's abortion policy in general, and its more
recent rulings in particular.
Webster v. Reproductive Health
This case involved a Missouri law that provided various
regulations on abortion (e.g., parental notification requirements
for abortions performed on minors). The law was challenged as
unconstitutional. At one point it seemed possible that the Court
might overturn Roe in this case, but Justice Sandra Day
O'Connor wanted to rule on the constitutionality of the Missouri
law without reexamining Roe at all. O'Connor had a history
of opposing Roe's "strict scrutiny" standard of review of
abortion regulations; she had upheld numerous state restrictions on
the grounds that they did not impose an "undue burden" on women
seeking abortions. But in Webster she wanted to avoid an
explicit ruling on Roe. She advocated a more "restrained"
approach that did not attempt to answer large constitutional
questions. Since the other justices were split on whether or not to
uphold Roe, O'Connor had the "swing vote" and her proposed
method of settling the case prevailed. Some provisions of the
Missouri law were ruled constitutional; others were struck down or
weakened. The Court's ruling was confusing and fractured in that
different judges concurred and dissented in different parts of the
opinion, and gave different reasons for their verdict.
Scalia's dissent: Scalia strongly objected to
O'Connor's attempt to avoid the critical constitutional question of
Roe's validity. In deciding Webster as it had,
the Court had needlessly prolonged its "self-awarded sovereignty
over a field where it has little proper business . . ." O'Connor's
claim to judicial "restraint" could not be taken seriously: Scalia
pointed to decisions made that very term which had gone well beyond
the immediate facts of the relevant cases, and in which O'Connor
had joined (or even authored).
There were compelling reasons to go beyond the immediate facts
in this case as well, Scalia argued. For one thing, the Court's
avoidance of the larger issues would make its abortion policies
more confusing than they already were. "Ordinarily, speaking no
more broadly than is absolutely required avoids throwing settled
law into confusion; doing so today preserves a chaos that is
evident to anyone who can read and count."
By not passing judgment on Roe, moreover, the Court was
inviting further pressure from the public to rule according to
popular will, rather than the law. Scalia warns that the Court
can now look
forward to at least another Term with carts full of mail from the
public, and streets full of demonstrators, urging us-their
unelected and life-tenured judges who have been awarded these
extraordinary, undemocratic characteristics precisely in order that
we might follow the law despite the popular will-to follow the
Another reason the Court should have ruled on Roe was
this: if Roe was in fact a bad decision (Scalia suggests
that a majority of justices thought that it was wrong), then the
harm caused by abortion was being done on false legal premises.
Scalia says that while the constitutionality of abortion may be
arguable, "what is not arguable . . . is that we should decide now
and not insist that we be run into a corner before we grudgingly
yield up our judgment." Scalia expressed his frustration at the
justices' unwillingness to explicitly overturn Roe even
though they thought that it was wrong, and even though they were
willing to weaken it by partly upholding the Missouri law. "It thus
appears that the mansion of constitutional abortion law,
constructed overnight in Roe, must be dissembled doorjamb
by doorjamb, and never entirely brought down, no matter how wrong
it may be."
Hodgson v. Minnesota
This was a case involving a Minnesota abortion law that required
minors to notify both parents before procuring an abortion. A
curious clause in the law stated that if the Supreme Court ruled it
unconstitutional, a "judicial bypass" clause would be activated
according to which a minor could obtain an abortion without
parental consent if she obtained the permission of a local judge.
The Court had to decide: (a) if the law was constitutional without
the judicial bypass clause; (b) if it was constitutional with the
bypass clause. The Court also ruled on separate law that mandated
one-parent notification. In a contentious decision, a plurality of
justices ruled that the bypass option made the notification
requirements constitutional. The Court's opinion was incredibly
confused and divided-one commentator has referred to it as a
"scrambled egg" of an opinion-because few of the justices could completely
agree on whether the law was constitutional or why. The "chaos"
that Scalia had warned about in Webster had come upon the
Court with a vengeance.
Scalia's Dissent: Scalia's response to the
Court's decision was short and to the point. The Court's
abandonment of the constitution on the abortion issue had led the
justices to substitute their individual views for the law, which in
turn had led to chaos.
As I understand
the various opinions today: One Justice holds that two parent
notification is unconstitutional (at least in the present
circumstances) without judicial bypass, but constitutional with
bypass . . .; four Justices would hold that the two-parent
notification is constitutional with or without bypass . . .; four
Justices would hold that two-parent notification is
unconstitutional with or without bypass, although the four apply
two different standards . . .; six Justices hold that one-parent
notification with bypass in unconstitutional, though for two
different sets of reasons . . .; and three Justices would hold that
one-parent notification with bypass is unconstitutional. . . . One
will search in vain the document we are supposed to be construing
for text that provides the basis for the argument over these
distinctions; and will find in our society's tradition regarding
abortion no hint that the distinctions are constitutionally
relevant, much less any indication how a constitutional argument
about them ought to be resolved. The random and unpredictable
results of our consequently unchanneled individual views make it
increasingly evident, Term after Term, that the tools for this job
are not to be found in the lawyer's-and hence not in the
judge's-workbox. I continue to dissent from this enterprise of
devising an Abortion Code, and from the illusion that we have
authority to do so.
Planned Parenthood of SE Pennsylvania
v. Casey (1992)
Background: Scalia was not the only judge to
notice the harm the Court was inflicting on the law by its internal
divisions. Lower courts found themselves in a nearly impossible
situation as they tried to unscramble the Supreme Court's "egg:"
they were supposed to apply the law as set by the Court's
precedents, but the Court's abortion opinions had hopelessly
muddled the issue. Matters came to a head in 1991 when the Third
District Court ruled in Planned Parenthood v. Casey that
Roe had been effectively overturned by the Supreme Court's
recent decisions. Specifically, the "strict scrutiny" standard
adopted by Roe no longer applied to abortion laws, because
a majority of justices apparently no longer supported this standard
(although thanks to O'Connor they had avoided explicitly ruling to
this effect in Webster). The Third District Court ruled
that a new standard was now in effect: O'Connor's "undue burden"
standard. The constitutionality of state abortion laws would now be
judged on the basis of the degree of "burden" they placed on women
seeking abortion. If the "burden" was "undue," the law was
unconstitutional. This ruling was remarkable inasmuch as the
Supreme Court had never openly endorsed O'Connor's standard; but
the Court's inability to articulate a sound constitutional
foundation for its abortion decisions, and the justices' inability
to agree on any traditional standard of review, essentially forced
the lower court to appeal to a single justice's personal
In applying this new standard to the Pennsylvania law, the Third
District Court ruled that some of its provisions were
constitutional (e.g. parental notification requirements and a
mandatory 24-hour waiting period). One provision was struck down:
the requirement that married women notify their husbands of their
intent to have an abortion. The court ruled that unlike the other
provisions this placed an "undue burden" on women and was therefore
unconstitutional. Both sides appealed the decision, and the case
came before the Supreme Court.
The Supreme Court's Casey ruling: The
Court's roster had changed by 1991: Justices Brennan and Marshall
(both strong supporters of Roe) had been replaced by David
Souter and Clarence Thomas (who were thought to be less supportive
of abortion rights). Many observers expected the Court to finally
overturn Roe. Initially it seemed that five justices-Chief
Justice Rehnquist and Justices White, Scalia, Kennedy, and Thomas-
wanted to do just that. Two others-Stevens and Blackmun-wanted to
uphold Roe and strike down Pennsylvania's law entirely. In
the end, O'Connor and Souter prevailed on Kennedy to join them in a
"middle" opinion: they upheld what they called the "central
holding" of Roe but abandoned certain aspects such as its
trimester scheme. They also announced that O'Connor's "undue
burden" standard was now the official yardstick to be used in
abortion cases. Applying this standard to the Pennsylvania law,
they agreed with Third District Court that the spousal notification
requirement caused an "undue burden," but that the other provisions
of the law were-at least for the time being-constitutional. This
opinion was supported by Stevens and Blackmun in its upholding of
Roe, and was joined by the anti-Roe justices only
insofar as it upheld the Pennsylvania regulations.
The authors of the Casey plurality justified their
upholding of Roe by appealing to stare decisis:
the judicial doctrine of upholding precedents to preserve the law's
consistency, except in rare cases. "Liberty finds no refuge in a
jurisprudence of doubt," the Casey opinion began. They
therefore thought it necessary to remove all doubt that the Court
would uphold Roe, even though at times they implied that
the 1973 decision may have been wrong. They claimed that public
opposition to Roe only made it more imperative that the
Court support its precedents, lest its integrity as an impartial
judicial body be compromised. They maintained that Roe had
resolved the national controversy over abortion and that it was
their duty to adhere to it.
The Court also demanded obedience to its verdict. It called on
both sides of the "controversial" issue of abortion to "end their
national division and accept a common mandate" that the Court had
discovered in the Constitution. It praised those who were willing
to follow the Court's decisions despite disagreeing with them.
Kennedy, Souter, and O'Connor also praised Roe's
conception of "liberty" which they now claimed to be defending.
They wrote that "at the heart of liberty is the ability of every
person to define for themselves the concept of existence, of
meaning, of the universe, and of the mystery of human life."
Scalia's Dissent: The Casey decision
provoked a visceral response from Scalia, who took the decision
apart point by point in animated fashion. He began by saying that
the issue of abortion should be resolved "like most important
questions in our democracy: by citizens trying to persuade one
another and then voting." The Court was right to say that certain
liberties are protected from intrusive laws by the Constitution,
but it is clear that not every liberty is protected: there is no
constitutional right to bigamy, for instance.
The issue is
whether [abortion] is a liberty protected by the Constitution of
the United States. I am sure that it is not. I reach that
conclusion not because of anything so exalted as my views
concerning the "concept of existence, of meaning, of the universe,
and of the mystery of human life." Rather, I reach it for the same
reason I reach the conclusion that bigamy is not constitutionally
protected-because of two simple facts: (1) the Constitution says
nothing about it, and (2) the longstanding traditions of American
society have permitted it to be legally proscribed.
In Roe the Court had made a decision that was "plainly
evidenced by the fact that after twenty years no solid legal
defense of the decision had been constructed. Defenders of
Roe had to resort to subjective value judgments about
things such as "personal choice" and "bodily integrity" to argue
their case. Scalia notes that laws restrict personal
choices-including very intimate choices- all the time: such as laws
against polygamy and incest. The justices' decision to protect the
choice to have an abortion was not supported by "reasoned judgment"
but "only by personal predilection."
The Casey authors, of course, appealed chiefly to
stare decisis rather than arguing that Roe itself
was a sound decision. Scalia points out, however, that they really
did not preserve Roe itself: they essentially made up a
whole new opinion with an entirely new standard at its heart: the
amorphous "undue burden" standard. This was not only an implicit
rejection of Roe but contradicted numerous other Court
abortion precedents. The plurality's reliance on stare
decisis was thus "contrived," a
"keep-what-you-want-and-throw-away-the-rest" version that really
was at odds with the whole point of stare decisis.
Moreover, the "undue burden" standard was not only a pure
fabrication with no legal basis, but was also inherently circular
and subjective. (At least Roe was clear in the guidelines
it laid down, says Scalia.) "Undue burden" is a "manipulable" phrase that
can mean any number of different things, as shown by the fact that
theCasey justices were now defining it very differently
from how they had used it in previous cases. The inevitable result of
the use of this "rootless" standard will be that more power is placed
in the hands of individual judges to write their own private
preferences into the law.
standardless nature of this inquiry invites the district judge to
give effect to his personal preferences about abortion. By finding
and relying on the right facts, he can invalidate, it would seem,
almost any abortion restriction that strikes him as "undue"-subject
of course, to the possibility of being reversed by a court of
appeals or Supreme Court that is as unconstrained in reviewing his
decision as he was in making it.
What appears to be the true meaning of "undue burden" is this,
says Scalia: a state may not regulate abortion in such a way that
the number of abortions actually goes down. That is, laws which are
actually successful in deterring women from procuring abortions are
inherently "burdensome" and thus unconstitutional.
flowery rhetoric about the State's "substantial" and "profound"
interest in "potential human life," and criticism of Roe
for undervaluing that interest, the joint opinion permits the State
to pursue that interest only so long as it is not too successful. .
. . Reason finds no refuge in this jurisprudence of confusion.
Scalia then refutes the notion that in Roe the Court
had "resolved" the national controversy over abortion, or that it
would resolve it in Casey. On the contrary, Roe
had made the controversy much worse by elevating the debate to the
national level. Prior to Roe the matter was being argued
in state legislatures, where different policies could be fitted to
different populations and compromises could be reached. But
Roe forced the issue to be resolved uniformly across the
nation, and thwarted all attempts at compromise by mandating
abortion on demand. The effects were pernicious for the country
and the Court itself.
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 by keeping us
in the abortion umpiring business, it is the perpetuation of the
disruption, rather than any Pax Roeana, that the Court's
new majority decrees.
Scalia next ridicules the plurality's pompous assertion of the
Court's power, found in its demand that people follow its judgments
even if they disagree. "The Imperial Judiciary lives," he wrote.
Kennedy, O'Connor, and Souter were presenting a "Nietzschean vision
of us unelected, life tenured judges . . . leading a Volk who will
be 'tested by following,' and whose very 'belief in themselves' is
mystically bound up in their 'understanding' of a Court that
'speak[s] before all others for their constitutional ideals' . . .
." Scalia contrasts their self-aggrandizing portrait with the role
that the Founders saw the Court playing-a "somewhat more modest
role" in which judges were not activists.
The political pressure that was being brought on the Court over
abortion was the Court's own fault. By asserting that it could make
value judgments rather than merely legal judgments, the Court had
invited people to campaign for justices and judicial decisions that
shared their own values.
[I]f, as I say,
our pronouncement of constitutional law rests primarily on value
judgments, then a free and intelligent people's attitude towards us
can be expected to be (ought to be) quite different. The
people know that their value judgments are quite as good as those
taught in any law school-maybe better. If, indeed, the "liberties"
protected by the Constitution are, as the Court says, undefined and
unbounded, then the people should demonstrate, to protest
that we do not implement their values instead of
The plurality's demand that people "follow" the Court is
therefore misguided, especially in view of its assertion that there
are constitutional "rights" found neither in the text of the
Constitution nor in the American tradition. The damage done to the
Court (as exemplified by politicized and contentious judicial
confirmation hearings) was of the Court's own making.
Scalia concludes by comparing Casey to Dred
Scott. Casey would not resolve the conflict over
abortion any more than Scott had resolved the conflict
over slavery. In fact, like Roe, it would make the
conflict worse by continuing to prevent a democratic solution. The
conclusion is obvious to Scalia: "We should get out of this area,
where we have no right to be, and where we do neither ourselves nor
the country any good by remaining."
In the 1990s many states passed laws banning a procedure called
"partial-birth abortion." This procedure involved delivering an
unborn child until only its head remained inside the mother, then
puncturing its skull and vacuuming its brains out so the skull
would collapse. The partial-birth abortion bans were quickly
challenged by abortion advocates, and federal judges prevented any
of them from taking effect until they had been examined by the
courts. The issue reached the Supreme Court in 2000 in Stenberg
v. Carhart, a case involving Nebraska's ban on partial-birth
abortion. In an opinion authored by Justice Stephen Breyer, the
Court ruled 5-4 that Nebraska's law placed an "undue burden" on
women and was therefore (by Casey) unconstitutional.
States could not ban the procedure; partial birth abortion was
protected by the constitution.
Interestingly, Justice Kennedy dissented in Stenberg,
although he had co-authored the Casey opinion. In his
view, the Nebraska law did not cause an "undue burden" and was
therefore constitutional. He felt that Stenberg went far
beyond Casey in its expansion of abortion rights, and that
it ignored Casey's claim that states had a "substantial"
interest in protecting unborn life.
Scalia's dissent: Scalia's opening paragraph
speaks for itself:
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 child-proscribed by this statute is so
horrible that the most clinical description of it evokes a shudder
of revulsion. . . . 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.
The problem was not only with the Court's reasoning in
Stenberg, however; it was also with the Casey
reasoning on which Stenberg relied. Scalia thus apparently
disagreed with Kennedy, who disagreed with Stenberg while
agreeing with Casey. For Scalia, the two decisions were-in
a sense-all too consistent, because Casey's "undue burden"
standard allowed for precisely the sort of subjective judgment
exercised by the Stenberg Court:
In the last
analysis, my judgment that Casey does not support today's
tragic result can be traced to the fact that what I consider to be
an "undue burden" is different from what the majority considers to
be an "undue burden"-a conclusion that cannot be demonstrated true
or false by factual inquiry or legal reasoning. It is a value
judgment, dependent upon how much one respects (or believes society
ought to respect) the life of a partially delivered fetus, and how
much one respects (or believes society ought to respect) the
freedom of the woman who gave it life to kill it. Evidently, the
five Justices in today's majority value the former less, or the
latter more, (or both), than the four of us in dissent. Case
closed. There is no cause for anyone who believes in 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.
The effect of Casey was to make abortion cases purely a
matter of vote-counting based on the nine justices' policy
preferences. Stenberg was merely a particularly odious
manifestation of this result. "Casey must be overruled."
Scalia concludes by noting that public controversy over abortion
and over the Court's role in deciding abortion was only going to
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 letthem decide, State by State,
whether this practice should be allowed. Casey must be
v. Webster Reproductive Health Servicies , 532 (Scalia, J.,
  E.
Lazarus, Closed Chambers: The Rise, Fall, and Future of the
Modern Supreme Court (New York: Penguin Books, 2005), 435.
Parenthood of SE Pennsylvania v. Casey , 980 (Scalia, J.,
 A 1944
case in which the Court ruled that the U.S. government could detain
U.S. citizens of Japanese descent in internment camps.
Stenberg v. Carhart , 954 (Scalia, J., dissenting)