Scalia Is Wrong About Abortion

I seldom have found myself in disagreement with Supreme Court Associate Justice Antonin Scalia. He has a brilliant mind, and he knows and reveres the Constitution and the American form of government. But he’s wrong about abortion. Recently, he told students at the University of Central Missouri that the subject of abortion is not found in the Constitution:

“The reality is the Constitution doesn’t address the subject at all,” he said. “It is one of the many subjects not in the Constitution which is therefore left to democracy. If you want the right to an abortion, persuade your fellow citizens it’s a good idea, and pass a law. If you feel the other way, repeal the law.”

I disagree. In fact, I believe the Constitution outlaws abortion, and I think I can prove it to you.

To understand why abortion is still illegal, despite Roe v. Wade, you must begin by doing something few Americans bother with anymore: reading the preamble to the U.S. Constitution:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

Important words all. But I want you to focus right now on those to whom this document applies. Who are the subjects and beneficiaries of the Constitution, as stated clearly in the preamble?

The answer? “To ourselves and our Posterity.” The word “ourselves” in this context refers to those men who wrote it and to their generation of Americans. “Posterity,” which literally means “descendants” or all succeeding generations, refers, in this context, to all those Americans yet unborn.

Is your great-great-great-great-granddaughter your posterity? Absolutely. Is she born yet? Absolutely not. Does the fact that she is not born yet make her any less your posterity? No.

Now, specifically what rights are ascribed by the Constitution to ourselves and our posterity?

“Amendment V: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

Clearly, the Fifth Amendment establishes that our posterity — those yet unborn — shall not be deprived of life without due process. Bingo! This same principle was contained in the Declaration of Independence:

“We hold these Truths to be self-evident, that all Men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the Pursuit of Happiness.”

Life is an unalienable right, which means man can’t take it away through laws or through Supreme Court decisions. And just so there is no confusion about this being a limitation only on the federal government, check out the 14th Amendment:

“Section 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Tell me, Where is due process for those unborn children sentenced to death while still in the womb?

Some abortion advocates have tried to suggest that Roe v. Wade — an arbitrary and capricious attempt by the Supreme Court to exceed its constitutional limitations and legislate — is itself the due process for unborn babies. Once again, however, the Constitution trumps that poor excuse for an argument:

“Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed; which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence.”

Roe v. Wade is, thus, a sham — a house of cards. It was an artificial attempt to make abortion a right by citing a right of privacy that is itself nowhere to be found in the Constitution. Roe v. Wade created rights where none existed and abrogated those that were enshrined as unalienable.

I rest my case. But I will not rest entirely until this nation is awakened to abortion as a national tragedy, as well as a constitutional threat to all of our God-given rights and an endangerment to the lives and liberties of our posterity.

If you agree with this message, feel free to forward it to Antonin Scalia.