Exposing the soft jurisprudential underbelly of Roe v. Wade

By Dave Andrusko

Editor’s note. We are only five days from the 47th anniversary of the awful Roe v. Wade and Doe v. Bolton decisions. For the past three weeks, we’ve posted new stories in anticipation along with reposts of stories that had been particularly well received. This first appeared in 2017.

In are approaching the 44th anniversary of one of the bleakest days in American history–January 22, 1973–when seven justices blissfully embraced judicial activism to eliminate the abortion statutes of all 50 states, from the most protective to the most permissive.

One of pro-life President-elect Donald Trump’s first tasks will be to nominate a replacement for the late Justice Antonin Scalia. Mr. Trump has repeatedly vowed to nominate only jurists who respect the text and the history of the Constitution to the High Court.

For context, I’d like to begin with a story I wrote a few years ago about an interview Justice Scalia gave to CNN. He was, as always, brilliant. The link to YouTube that shows the exchange still works. However the link to Kathleen Jean Lopez’s transcript does not.


There I was, peacefully switching back and forth between three sporting events when I happened upon Piers Morgan’s show on CNN. He was interviewing Supreme Court Justice Antonin Scalia. While I thoroughly enjoyed the portion that remained, I knew Morgan must have asked Justice Scalia about Roe v. Wade.

Kudos to Kathleen Jean Lopez, editor-at-large of National Review Online, who put the entire Roe/abortion exchange up online. You can read the discussion at your leisure and watch some of the video.

Let’s talk about just three of many fascinating points. First, in only a few sentences, Justice Scalia exposes the soft jurisprudential underbelly of Roe. As he put it, “[T]he theory that was expounded to impose that decision [Roe] was a theory that does not make any sense.”

Ah, yes!

Second, Morgan asks Scalia if thinks abortion should be illegal. Justice Scalia responds with the first of several important distinctions: “I don’t have public views on what should be illegal and what shouldn’t. I have public views on what the Constitution prohibits and what it doesn’t prohibit.”

It would be amusing (if the subject weren’t so important) to watch Morgan try to “shame” Scalia into agreeing that abortion ought to be legal. After an incoherent foray into what the rights of women were when the Constitution was written, Morgan takes a second swing:

“But when women began to take charge in the last century, of their lives and their rights and so on, and began to fight for these, everybody believed that was the right thing to do, didn’t they? I mean, why would you be instinctively against that?”

Get it? “Everybody” agrees abortion should be legal—at least everybody who is anybody—so why would Justice Scalia “instinctively” go the wrong way? There follows a second keen distinction, one that people like Morgan either cannot understand or refuse to understand. Scalia says

“My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice.

“Some states prohibited it, some states didn’t. What Roe v. Wade said was that no state can prohibit it. That is simply not in the Constitution. It was one of those many things — most things in the world — left to democratic choice. And — and the court does — does not do democracy a favor when it takes an issue out of democratic choice [Morgan interrupts, but the rest of Scalia’s answer is] simply because it thinks it should not be there.”

Third, Morgan, as is his annoying custom, frontloads his question about the impact of Scalia’s Catholic faith on his jurisprudence by attempting to presuppose/preempt Scalia’s answer.

[Morgan]: “But how — how do you, as a conservative Catholic, how do you not bring your personal sense of what is right and wrong to that kind of decision? Because clearly, as a conservative Catholic, you’re going to be fundamentally against abortion.

“[Scalia]: Just as the pro-choice people say the Constitution prohibits the banning of abortion, so, also, the pro-life people say the opposite. They say that the Constitution requires the banning of abortion, because you’re depriving someone of life without due process of law.

“I reject that argument just as I reject the other one. The Constitution, in fact, says nothing at all about the subject. It is left to democratic choice.

“Now, regardless of what my views as a Catholic are, the Constitution says nothing about it.”

As noted above you can watch the discussion about abortion at CNN.