Roe v. Wade
Supreme Court of the United States
Argued December 13, 1971 Reargued October 11, 1972 Decided January 22, 1973
Full case name	Jane Roe, et al. v. Henry Wade, District Attorney of Dallas County
Citations	410 U.S. 113 (more) 93 S. Ct. 705; 35 L. Ed. 2d 147; 1973 U.S. LEXIS 159
Prior history	Judgment for plaintiffs, injunction denied, 314 F. Supp. 1217 (N.D. Tex. 1970); probable jurisdiction noted, 402 U.S. 941 (1971); set for reargument, 408 U.S. 919 (1972)
Subsequent history	Rehearing denied, 410 U.S. 959 (1973)
Argument	Oral argument
Reargument	Reargument
Holding
Texas law making it a crime to assist a woman to get an abortion violated her due process rights. U.S. District Court for the Northern District of Texas affirmed in part, reversed in part.
Court membership
Chief Justice Warren E. Burger Associate Justices William O. Douglas · William J. Brennan, Jr. Potter Stewart · Byron White Thurgood Marshall · Harry Blackmun Lewis F. Powell, Jr. · William Rehnquist
Case opinions
Majority	Blackmun, joined by Burger, Douglas, Brennan, Stewart, Marshall, Powell
Concurrence	Burger
Concurrence	Douglas
Concurrence	Stewart
Dissent	White, joined by Rehnquist
Dissent	Rehnquist
Laws applied
U.S. Const. Amend. XIV; Tex. Code Crim. Proc. arts. 1191–94, 1196

Roe v. Wade, 410 U.S. 113 (1973), is a landmark decision by the United States Supreme Court on the issue of abortion. Decided simultaneously with a companion case, Doe v. Bolton, the Court ruled that a right to privacy under the due process clause of the 14th Amendment extended to a woman's decision to have an abortion, but that right must be balanced against the state's two legitimate interests in regulating abortions: protecting prenatal life and protecting women's health. Arguing that these state interests became stronger over the course of a pregnancy, the Court resolved this balancing test by tying state regulation of abortion to the trimester of pregnancy.

The Court later rejected Roe's trimester framework, while affirming Roe's central holding that a person has a right to abortion until viability.^[1] The Roe decision defined "viable" as being "potentially able to live outside the mother's womb, albeit with artificial aid", adding that viability "is usually placed at about seven months (28 weeks) but may occur earlier, even at 24 weeks."^[2]

In disallowing many state and federal restrictions on abortion in the United States,^[3][4] Roe v. Wade prompted a national debate that continues today, about issues including whether and to what extent abortion should be legal, who should decide the legality of abortion, what methods the Supreme Court should use in constitutional adjudication, and what the role should be of religious and moral views in the political sphere. Roe v. Wade reshaped national politics, dividing much of the United States into pro-choice and pro-life camps, while activating grassroots movements on both sides.

Background[link]

History of abortion laws in the United States[link]

According to the Court, "the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage." In 1821, Connecticut passed the first state statute criminalizing abortion. Every state had abortion legislation by 1900.^[5] In the United States, abortion was sometimes considered a common law crime,^[6] though Justice Blackmun would conclude that the criminalization of abortion did not have "roots in the English common-law tradition."^[7]

Prior history of the case[link]

In June 1969, Norma L. McCorvey discovered she was pregnant with her third child. She returned to Dallas, Texas, where friends advised her to assert falsely that she had been raped in order to obtain a legal abortion (with the understanding that Texas law allowed abortion in cases of rape and incest). However, this scheme failed because there was no police report documenting the alleged rape. She attempted to obtain an illegal abortion, but found the unauthorized site had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington.^[8] (McCorvey would give birth before the case was decided.)

In 1970, Coffee and Weddington filed suit in a U.S. District Court in Texas on behalf of McCorvey (under the alias Jane Roe). The defendant in the case was Dallas County District Attorney Henry Wade, representing the State of Texas. McCorvey was no longer claiming her pregnancy was the result of rape, and later acknowledged that she had lied about having been raped.^[9][10] "Rape" is not mentioned in the judicial opinions in this case.^[11]

The district court ruled in McCorvey's favor on the legal merits of her case, and declined to grant an injunction against the enforcement of the laws barring abortion.^[11] The district court's decision was based upon the 9th Amendment, and the court relied upon a concurring opinion by Justice Arthur Goldberg in the 1965 Supreme Court case of Griswold v. Connecticut,^[12] finding in the decision for a right to privacy.^[13]

Before the Supreme Court[link]

Roe v. Wade reached the Supreme Court on appeal in 1970. The Justices delayed taking action on Roe and a closely related case, Doe v. Bolton, until they decided Younger v. Harris, as they felt that the appeals raised difficult questions on judicial jurisdiction, and United States v. Vuitch, where they considered the constitutionality of a District of Columbia statute that criminalized abortion except where the mother's life or health was endangered. In Vuitch, the Court narrowly upheld the statute, though in doing so, it treated abortion as a medical procedure and stated that the physician must be given room to determine what suffices as a danger to (physical or mental) health. The day after they announced their decision in Vuitch, they voted to hear both Roe and Doe.^[14]

Arguments were scheduled by the full Court for December 13, 1971. Before the Court could hear the oral arguments, Justices Black and Harlan retired. Chief Justice Burger asked Justices Stewart and Blackmun to determine whether Roe and Doe, among others, should be heard as scheduled. According to Blackmun, Stewart felt that the cases were a straightforward application of Younger v. Harris and recommended that the Court move forward as scheduled.^[15]

Following a first round of arguments, all seven Justices tentatively agreed that the law should be struck down, but for varying reasons.^[16] Burger assigned the role of writing the Court's opinion in Roe (as well as Doe) to Blackmun, who began drafting a preliminary opinion that emphasized what he saw as the Texas law's vagueness.^[17] Justices Rehnquist and Powell joined the Supreme Court too late to hear the first round of arguments. Additionally, Blackmun felt that his opinion was an inadequate reflection of his liberal colleagues' opinions.^[18] In May 1972, Blackmun proposed that the case be reargued. Justice Douglas threatened to write a dissent from the reargument order (he and the other liberal Justices were suspicious that Rehnquist and Powell would vote to uphold the statute), but was coaxed out of the action by his colleagues, and his dissent was merely mentioned in the reargument order without further statement or opinion.^[19][20] The case was reargued on October 11, 1972. Weddington continued to represent Roe, and Texas Assistant Attorney General Robert C. Flowers stepped in to replace Jay Floyd for Texas.

Blackmun continued work on his opinions in both cases over the summer recess, despite the fact that there was no guarantee that he would be assigned to write the opinions again. Over the recess, Blackmun spent a week researching the history of abortion at the Mayo Clinic in Minnesota, where he had worked in the 1950s. After the Court heard the second round of arguments, Powell stated that he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortions cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent.^[21]

Supreme Court decision[link]

Harry Blackmun wrote the Court’s opinion.

The Court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Burger and Douglas' concurring opinions and White's dissenting opinion were issued with along with the Court's opinion in Doe v. Bolton (announced on the same day as Roe v. Wade). The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny.^[22]

Right to privacy[link]

The Court declined to adopt the district court's Ninth Amendment rationale, and instead asserted that the "right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the district court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."^[23] Douglas in his concurring opinion in the companion case Doe v. Bolton, stated more emphatically that, "The Ninth Amendment obviously does not create federally enforceable rights."^[24]

The Court asserted that that the government had two competing interests – protecting the mother's health and protecting the "potentiality of human life". Following its earlier logic, the Court stated that during the first trimester, when the procedure is more safe than childbirth, the decision to abort must be left to the mother and her physician. The State has the right to intervene prior to fetal viability only to protect the health of the mother, and may regulate the procedure after viability so long as there is always an exception for preserving maternal health. The Court additionally added that the primary right being preserved in the Roe decision was that of the physician's right to practice medicine freely absent a compelling state interest – not women's rights in general.^[25] The Court explicitly rejected a fetal "right to life" argument.^[26]

The Justices had discussed the trimester framework extensively. Powell had suggested that the point where the state could intervene be placed at viability, which Marshall supported as well.^[27] Blackmun wrote of the majority decision he authored: "You will observe that I have concluded that the end of the first trimester is critical. This is arbitrary, but perhaps any other selected point, such as quickening or viability, is equally arbitrary."^[28] Douglas preferred the first trimester line,^[29] while Stewart said the lines were "legislative" and wanted more flexibility and consideration paid to the state legislatures, though he joined Blackmun's decision.^[30] Brennan proposed abandoning frameworks based on the age of the fetus and instead allowing states to regulate the procedure based on its safety for the mother.^[29]

Justiciability[link]

An aspect of the decision that attracted comparatively little attention was the Court's disposition of the issues of standing and mootness. Under the traditional interpretation of these rules, Jane Roe's appeal was "moot" because she had already given birth to her child and thus would not be affected by the ruling; she also lacked "standing" to assert the rights of other pregnant women.^[31] As she did not present an "actual case or controversy" (a grievance and a demand for relief), any opinion issued by the Supreme Court would constitute an advisory opinion, a practice forbidden by Article III of the United States Constitution.

The Court concluded that the case came within an established exception to the rule; one that allowed consideration of an issue that was "capable of repetition, yet evading review".^[32] This phrase had been coined in 1911 by Justice Joseph McKenna.^[33] Blackmun's opinion quoted McKenna, and noted that pregnancy would normally conclude more quickly than an appellate process: "If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied."^[34]

Dissents[link]

Byron White was the senior dissenting justice.

Justices Byron R. White and William H. Rehnquist wrote emphatic dissenting opinions in this case. White wrote:

I find nothing in the language or history of the Constitution to support the Court's judgment. The Court simply fashions and announces a new constitutional right for pregnant women and, with scarcely any reason or authority for its action, invests that right with sufficient substance to override most existing state abortion statutes. The upshot is that the people and the legislatures of the 50 States are constitutionally disentitled to weigh the relative importance of the continued existence and development of the fetus, on the one hand, against a spectrum of possible impacts on the woman, on the other hand. As an exercise of raw judicial power, the Court perhaps has authority to do what it does today; but, in my view, its judgment is an improvident and extravagant exercise of the power of judicial review that the Constitution extends to this Court.^[35][36]

White asserted that the Court "values the convenience of the pregnant mother more than the continued existence and development of the life or potential life that she carries." Despite White suggesting he "might agree" with the Court's values and priorities, he wrote that he saw "no constitutional warrant for imposing such an order of priorities on the people and legislatures of the States." White criticized the Court for involving itself in this issue by creating "a constitutional barrier to state efforts to protect human life and by investing mothers and doctors with the constitutionally protected right to exterminate it." He would have left this issue, for the most part, "with the people and to the political processes the people have devised to govern their affairs."

Rehnquist elaborated upon several of White's points, by asserting that the Court's historical analysis was flawed:

To reach its result, the Court necessarily has had to find within the scope of the Fourteenth Amendment a right that was apparently completely unknown to the drafters of the Amendment. As early as 1821, the first state law dealing directly with abortion was enacted by the Connecticut Legislature. By the time of the adoption of the Fourteenth Amendment in 1868, there were at least 36 laws enacted by state or territorial legislatures limiting abortion. While many States have amended or updated their laws, 21 of the laws on the books in 1868 remain in effect today.^[37][38][39]

From this historical record, Rehnquist concluded that, "There apparently was no question concerning the validity of this provision or of any of the other state statutes when the Fourteenth Amendment was adopted." Therefore, in his view, "the drafters did not intend to have the Fourteenth Amendment withdraw from the States the power to legislate with respect to this matter."

Reception[link]

Political[link]

The most prominent organized groups that mobilized in response to Roe are the National Abortion Rights Action League on the pro-choice side, and the National Right to Life Committee on the pro-life side.

Support[link]

Advocates of Roe describe it as vital to the preservation of women's rights, personal freedom, and privacy. Denying the abortion right has been equated to compulsory motherhood, and some scholars (not including any member of the Supreme Court) have argued that abortion bans therefore violate the Thirteenth Amendment:

When women are compelled to carry and bear children, they are subjected to 'involuntary servitude' in violation of the Thirteenth Amendment….[E]ven if the woman has stipulated to have consented to the risk of pregnancy, that does not permit the state to force her to remain pregnant.^[40]

Some pro-life supporters maintain that personhood begins at fertilization (also referred to as conception), and should therefore be protected by the Constitution;^[41] the dissenting justices in Roe instead wrote that decisions about abortion "should be left with the people and to the political processes the people have devised to govern their affairs."^[35]

The majority opinion allowed states to protect "fetal life after viability" even though a fetus is not "a person within the meaning of the Fourteenth Amendment". Supporters of Roe contend that the decision has a valid constitutional foundation, or contend that justification for the result in Roe could be found in the Constitution but not in the articles referenced in the decision.^[41][40]

Opposition[link]

Every year on the anniversary of the decision, pro-life supporters march up Constitution Avenue to the Supreme Court Building in Washington, D.C. in the March for Life.^[42] Around 250,000 people attend the march each year.^[43][44]

Opponents of Roe have asserted that the decision lacks a valid constitutional foundation. Like the dissenters in Roe, they have maintained that the Constitution is silent on the issue, and that proper solutions to the question would best be found via state legislatures and the legislative process, rather than through an all-encompassing ruling from the Supreme Court.

A prominent argument against the Roe decision is that, in the absence of consensus about when meaningful life begins, it is best to avoid the risk of doing harm.^[45]

In response to Roe v. Wade, most states enacted or attempted to enact laws limiting or regulating abortion, such as laws requiring parental consent for minors to obtain abortions, parental notification laws, spousal mutual consent laws, spousal notification laws, laws requiring abortions to be performed in hospitals but not clinics, laws barring state funding for abortions, laws banning intact dilation and extraction (also known as partial-birth abortion), laws requiring waiting periods before abortion, or laws mandating women read certain types of literature and watch a fetal ultrasound before undergoing an abortion.^[46] Congress in 1976 passed the Hyde Amendment, barring federal funding of abortions (except in the case of rape, incest, or life of the woman) for poor women through the Medicaid program. The Supreme Court struck down several state restrictions on abortions in a long series of cases stretching from the mid-1970s to the late 1980s, but upheld restrictions on funding, including the Hyde Amendment, in the case of Harris v. McRae (1980).^[47]

Perhaps the most notable opposition to Roe comes from Roe herself; in 1995, Norma L. McCorvey revealed that she became pro-life and is now a vocal opponent of abortion.^[48]

Legal[link]

The neutrality of this section is disputed. Please see the discussion on the talk page. Please do not remove this message until the dispute is resolved. (April 2012)

Harry Blackmun, who authored the decision, became inexorably attached to the decision. Despite his initial reluctance, he eventually became the decision's chief champion and protector during his later years on the Court.^[49] Others have joined him in support of Roe, including Judith Jarvis Thomson, who before the decision had offered an influential defense of abortion.^[50]

Liberal and feminist legal scholars have had various reactions to Roe, not always giving the decision unqualified support. One reaction has been to argue that Justice Blackmun reached the correct result but went about it the wrong way.^[51] Another reaction has been to argue that the end achieved by Roe does not justify the means.^[52]

Justice John Paul Stevens, while agreeing with the decision, has suggested that it should have been more narrowly focused on the issue of privacy. According to Stevens, if the decision had avoided the trimester framework and simply stated that the right to privacy included a right to choose abortion, "it might have been much more acceptable" from a legal standpoint.^[53] His colleague Justice Ruth Bader Ginsburg had, before joining the Court, criticized the decision for terminating a nascent movement to liberalize abortion law through legislation.^[54] Watergate prosecutor Archibald Cox wrote: "[Roe’s] failure to confront the issue in principled terms leaves the opinion to read like a set of hospital rules and regulations.... Neither historian, nor layman, nor lawyer will be persuaded that all the prescriptions of Justice Blackmun are part of the Constitution."^[55]

In a highly-cited 1973 article in the Yale Law Journal,^[56] Professor John Hart Ely criticized Roe as a decision which "is not constitutional law and gives almost no sense of an obligation to try to be."^[57] Ely added: "What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure." Professor Laurence Tribe had similar thoughts: "One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."^[58] Liberal law professors Alan Dershowitz,^[59] Cass Sunstein,^[60] and Kermit Roosevelt^[61] have also expressed disappointment with Roe.

Jeffrey Rosen^[62] and Michael Kinsley^[63] echo Ginsburg, arguing that a legislative approach movement would have been the correct way to build a more durable consensus in support of abortion rights. William Saletan wrote that "Blackmun’s [Supreme Court] papers vindicate every indictment of Roe: invention, overreach, arbitrariness, textual indifference."^[64] Benjamin Wittes has written that Roe "disenfranchised millions of conservatives on an issue about which they care deeply".^[65] And Edward Lazarus, a former Blackmun clerk who "loved Roe’s author like a grandfather" wrote: "As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible....Justice Blackmun’s opinion provides essentially no reasoning in support of its holding. And in the almost 30 years since Roe’s announcement, no one has produced a convincing defense of Roe on its own terms."^[66]

The assertion that the Supreme Court was making a legislative decision is often repeated by opponents of the Court's decision.^[67] The "viability" criterion, which Blackmun acknowledged was arbitrary, is still in effect, although the point of viability has changed as medical science has found ways to help premature babies survive.^[68]

Public opinion[link]

A Gallup poll conducted in May 2009 indicates that a minority of Americans, 37%, believe that abortion should be legal in any or most circumstances, compared to 41% in May 2008.^[69] Similarly, an April 2009 Pew Research Center poll showed a softening of support for legal abortion compared to the previous years of polling. People who said they support abortion in all or most cases dropped from 54% in 2008 to 46% in 2009.^[70]

In contrast, an October 2007 Harris poll on Roe v. Wade asked the following question:

In 1973, the U.S. Supreme Court decided that states laws which made it illegal for a woman to have an abortion up to three months of pregnancy were unconstitutional, and that the decision on whether a woman should have an abortion up to three months of pregnancy should be left to the woman and her doctor to decide. In general, do you favor or oppose this part of the U.S. Supreme Court decision making abortions up to three months of pregnancy legal?^[71]

In reply, 56 percent of respondents indicated favour while 40 percent indicated opposition. The Harris organization concluded from this poll that "56 percent now favours the U.S. Supreme Court decision." Pro-life activists have disputed whether the Harris poll question is a valid measure of public opinion about Roe's overall decision, because the question focuses only on the first three months of pregnancy.^[72][73] The Harris poll has tracked public opinion about Roe since 1973:^[71][74]

Regarding the Roe decision as a whole, more Americans support it than support overturning it.^[75] When pollsters describe various regulations that Roe prevents legislatures from enacting, support for Roe drops.^[75][76]

Role in subsequent decisions and politics[link]

Opposition to Roe on the bench grew when President Reagan—who supported legislative restrictions on abortion—began making federal judicial appointments in 1981. Reagan denied that there was any litmus test: "I have never given a litmus test to anyone that I have appointed to the bench…. I feel very strongly about those social issues, but I also place my confidence in the fact that the one thing that I do seek are judges that will interpret the law and not write the law. We've had too many examples in recent years of courts and judges legislating."^[77]

In addition to White and Rehnquist, Reagan appointee Sandra Day O'Connor began dissenting from the Court's abortion cases, arguing in 1983 that the trimester-based analysis devised by the Roe Court was "unworkable."^[78] Shortly before his retirement from the bench, Chief Justice Warren Burger suggested in 1986 that Roe be "reexamined";^[79] the associate justice who filled Burger's place on the Court—Justice Antonin Scalia—vigorously opposed Roe. Concern about overturning Roe played a major role in the defeat of Robert Bork's nomination to the Court in 1987; the man eventually appointed to replace Roe-supporter Lewis Powell was Anthony M. Kennedy.

The Supreme Court of Canada used the rulings in both Roe and Doe v. Bolton as grounds to find Canada's federal law restricting access to abortions unconstitutional. That Canadian case, R. v. Morgentaler, was decided in 1988.^[80]

[edit] Webster v. Reproductive Health Services

In a 5–4 decision in 1989's Webster v. Reproductive Health Services, Chief Justice Rehnquist, writing for the Court, declined to explicitly overrule Roe, because "none of the challenged provisions of the Missouri Act properly before us conflict with the Constitution."^[81] In this case, the Court upheld several abortion restrictions, and modified the Roe trimester framework.^[81]

In concurring opinions, O'Connor refused to reconsider Roe, and Justice Antonin Scalia criticized the Court and O'Connor for not overruling Roe.^[81] Blackmun – author of the Roe opinion – stated in his dissent that White, Kennedy and Rehnquist were "callous" and "deceptive," that they deserved to be charged with "cowardice and illegitimacy," and that their plurality opinion "foments disregard for the law."^[81] White had recently opined that the majority reasoning in Roe v. Wade was "warped."^[79]

[edit] Planned Parenthood v. Casey

During initial deliberations for Planned Parenthood v. Casey (1992), an initial majority of five Justices (Rehnquist, White, Scalia, Kennedy, and Thomas) were willing to effectively overturn Roe. Kennedy changed his mind after the initial conference,^[82] and O'Connor, Kennedy, and Souter joined Blackmun and Stevens to reaffirm the central holding of Roe,^[83] saying, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."^[84] Only Justice Blackmun would have retained Roe entirely and struck down all aspects of the statute at issue in Casey.

Scalia's dissent acknowledged that abortion rights are of "great importance to many women", but asserted that it is not a liberty protected by the Constitution, because the Constitution does not mention it, and because longstanding traditions have permitted it to be legally proscribed. Scalia concluded: "[B]y foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish."^[84]

[edit] Stenberg v. Carhart

During the 1990s, Nebraska attempted to ban a certain second-trimester abortion procedure known as intact dilation and extraction (sometimes called partial birth abortion). The Nebraska ban allowed other second-trimester abortion procedures called dilation and evacuation abortions. Ginsburg (who replaced White) stated, "this law does not save any fetus from destruction, for it targets only 'a method of performing abortion'."^[85] The Supreme Court struck down the Nebraska ban by a 5–4 vote in Stenberg v. Carhart (2000), citing a right to use the safest method of second trimester abortion.

Kennedy, who had co-authored the 5-4 Casey decision upholding Roe, was among the dissenters in Stenberg, writing that Nebraska had done nothing unconstitutional.^[85] Kennedy described the second trimester abortion procedure that Nebraska was not seeking to prohibit: "The fetus, in many cases, dies just as a human adult or child would: It bleeds to death as it is torn from limb from limb. The fetus can be alive at the beginning of the dismemberment process and can survive for a time while its limbs are being torn off." Kennedy wrote that since this dilation and evacuation procedure remained available in Nebraska, the state was free to ban the other procedure sometimes called "partial birth abortion."^[85]

The remaining three dissenters in Stenberg – Thomas, Scalia, and Rehnquist – disagreed again with Roe: "Although a State may permit abortion, nothing in the Constitution dictates that a State must do so."

[edit] Gonzales v. Carhart

In 2003, Congress passed the Partial-Birth Abortion Ban Act, which led to a lawsuit in the case of Gonzales v. Carhart. The Court had previously ruled in Stenberg v. Carhart that a state's ban on "partial birth abortion" was unconstitutional because such a ban would not allow for the health of the woman. The membership of the Court changed after Stenberg, with John Roberts and Samuel Alito replacing Rehnquist and O'Connor, respectively. Further, the ban at issue in Gonzales v. Carhart was a clear federal statute, rather than a relatively vague state statute as in the Stenberg case.

On April 18, 2007, the Supreme Court handed down a 5 to 4 decision upholding the constitutionality of the Partial-Birth Abortion Ban Act. Kennedy wrote the majority opinion, asserting that Congress was within its power to generally ban the procedure, although the Court left the door open for as-applied challenges. Kennedy's opinion did not reach the question whether the Court's prior decisions in Roe v. Wade, Planned Parenthood v. Casey, and Stenberg v. Carhart were valid, and instead the Court said that the challenged statute is consistent with those prior decisions whether or not those prior decisions were valid.

Joining the majority were Chief Justice John Roberts, Scalia, Thomas, and Alito. Ginsburg and the other three justices dissented, contending that the ruling ignored Supreme Court abortion precedent, and also offering an equality-based justification for that abortion precedent. Thomas filed a concurring opinion, joined by Scalia, contending that the Court's prior decisions in Roe v. Wade and Planned Parenthood v. Casey should be reversed, and also noting that the Partial-Birth Abortion Ban Act may exceed the powers of Congress under the Commerce Clause.

Activities of Norma McCorvey[link]

Norma McCorvey became a member of the pro-life movement in 1995; she now supports making abortion illegal. In 1998, she testified to Congress:

It was my pseudonym, Jane Roe, which had been used to create the "right" to abortion out of legal thin air. But Sarah Weddington and Linda Coffee never told me that what I was signing would allow women to come up to me 15, 20 years later and say, "Thank you for allowing me to have my five or six abortions. Without you, it wouldn't have been possible." Sarah never mentioned women using abortions as a form of birth control. We talked about truly desperate and needy women, not women already wearing maternity clothes.^[10]

As a party to the original litigation, she sought to reopen the case in U.S. District Court in Texas to have Roe v. Wade overturned. However, the Fifth Circuit decided that her case was moot, in McCorvey v. Hill.^[86] In a concurring opinion, Judge Edith Jones agreed that McCorvey was raising legitimate questions about emotional and other harm suffered by women who have had abortions, about increased resources available for the care of unwanted children, and about new scientific understanding of fetal development, but Jones said she was compelled to agree that the case was moot. On February 22, 2005, the Supreme Court refused to grant a writ of certiorari, and McCorvey's appeal ended.

Presidential positions[link]

President Richard Nixon did not publicly comment about the decision.^[87] In private conversation later revealed as part of the Nixon tapes, Nixon said "There are times when an abortion is necessary, I know that. When you have a black and a white" (a reference to interracial pregnancies) "or a rape."^[88][89] However, Nixon was also concerned that greater access to abortions would foster "permissiveness," and said that "it breaks the family."^[88]

Generally, presidential opinion has been split between major party lines. The Roe decision was opposed by Presidents Gerald Ford,^[90] Ronald Reagan,^[91] and George W. Bush.^[92] President George H.W. Bush also opposed Roe, though he had supported abortion rights earlier in his career.^[93][94]

President Jimmy Carter supported legal abortion from an early point in his political career, in order to prevent birth defects and in other extreme cases; he encouraged the outcome in Roe and generally supported abortion rights.^[95] Roe was also supported by President Bill Clinton.^[96] President Barack Obama has taken the position that "Abortions should be legally available in accordance with Roe v. Wade."^[97]

[edit] State laws regarding Roe

Several states have enacted so-called trigger laws which would take effect in the event that Roe v. Wade is overturned. Those states include Arkansas, Illinois, Kentucky, Louisiana, Mississippi, North Dakota and South Dakota.^[98] Additionally, many states did not repeal pre-1973 statutes that criminalized abortion, and some of those statutes could again be in force if Roe was reversed.^[99]

Other states have passed laws to maintain the legality of abortion if Roe v. Wade is overturned. Those states include California, Connecticut, Hawaii, Maine, Maryland, Nevada and Washington.^[98]

See also[link]

Footnotes[link]

References[link]

Further reading[link]

External links[link]

Listen to this article (info/dl)

This audio file was created from a revision of the "Roe v. Wade" article dated 2005-07-16, and does not reflect subsequent edits to the article. (Audio help)

More spoken articles

Wikisource has original text related to this article: Roe v. Wade

• Full text of opinion in Roe v. Wade:
  • Cornell LLI Justia
• The concurring opinions of Burger and Douglas, as well as White's dissenting opinion, were issued along with Doe v. Bolton and may be found at:
  • Cornell LLI
• Audio of oral argument at www.oyez.org

Antonin Scalia
Associate Justice of the United States Supreme Court
Incumbent
Assumed office September 26, 1986
Nominated by	Ronald Reagan
Preceded by	William Rehnquist
Judge of the United States Court of Appeals for the District of Columbia Circuit
In office August 17, 1982 – September 26, 1986
Nominated by	Ronald Reagan
Preceded by	Roger Robb
Succeeded by	David Sentelle
United States Assistant Attorney General for the Office of Legal Counsel
In office 1974–1977
President	Richard Nixon Gerald Ford
Preceded by	John Harmon
Personal details
Born	(1936-03-11) March 11, 1936 (age 76) Trenton, New Jersey, U.S.
Spouse(s)	Maureen Scalia (née McCarthy)
Children	Ann Forest Banaszewski Eugene Scalia John Francis Scalia Catherine Elisabeth Courtney Mary Clare Scalia Paul David Scalia Matthew Scalia Christopher James Scalia Margaret Jane Scalia
Alma mater	Georgetown University University of Fribourg Harvard Law School
Religion	Roman Catholic
Signature

Antonin Gregory Scalia (ⁱ/skəˈlijə/; born March 11, 1936) is an American jurist who serves as an Associate Justice of the Supreme Court of the United States. As the longest-serving justice currently on the Court, Scalia is the Senior Associate Justice. Appointed to the Court by President Ronald Reagan in 1986, Scalia has been described as the intellectual anchor of the Court's conservative wing.

Scalia was born in Trenton, New Jersey, and attended public grade school and Catholic high school in New York City, where his family had moved. He attended Georgetown University as an undergraduate and obtained his Bachelor of Laws degree from Harvard Law School. After spending six years in a Cleveland law firm, he became a law school professor. In the early 1970s, he served in the Nixon and Ford administrations, first at minor administrative agencies, and then as an assistant attorney general. He spent most of the Carter years teaching at the University of Chicago, where he became one of the first faculty advisers of the fledgling Federalist Society. In 1982, he was appointed as a judge of the United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan.

In 1986, Scalia was appointed by Reagan to the Supreme Court to fill the associate justice seat vacated when Justice William Rehnquist was elevated to Chief Justice. Whereas Rehnquist's confirmation was contentious, Scalia was asked few difficult questions by the Senate Judiciary Committee, and faced no opposition. Scalia was unanimously confirmed by the Senate, and took his seat on September 26, 1986.

In his quarter-century on the Court, Scalia has staked out a conservative ideology in his opinions, advocating textualism in statutory interpretation and originalism in constitutional interpretation. He is a strong defender of the powers of the executive branch, believing presidential power should be paramount in many areas. He opposes affirmative action and other policies that treat minorities as groups. He files separate opinions in large numbers of cases, and, in his minority opinions, often castigates the Court's majority in scathing language.

Early life[link]

An only child, Antonin Scalia was born in Trenton, New Jersey, on March 11, 1936.^[1] His father, Salvatore Eugene Scalia, was an immigrant from Sicily who was a graduate student and clerk at the time of his son's birth, but who later became a professor of Romance languages at Brooklyn College.^[2] His mother, Catherine Scalia (née Panaro), was born in the United States to Italian immigrant parents, and worked as an elementary school teacher.^[2]

When Antonin was six years old, the Scalia family moved to Elmhurst, Queens, in New York City. Antonin's parents drove the boy to excel in his schoolwork. After completing eighth grade in public school,^[3] he obtained a scholarship to Jesuit-run Xavier High School in Manhattan,^[4] where he graduated first in his class.^[5] Scalia later stated that he spent much of his time on schoolwork, and admitted, "I was never cool."^[6]

Classmate and future New York State official William Stern remembered Scalia in his high school days:

This kid was a conservative when he was 17 years old. An archconservative Catholic. He could have been a member of the Curia. He was the top student in the class. He was brilliant, way above everybody else.^[1]

In 1953, Scalia enrolled at Georgetown University, where he graduated valedictorian and summa cum laude with a Bachelor of Arts in history in 1957. While at Georgetown, he also studied at the University of Fribourg, Switzerland^[1] and went on to study law at Harvard Law School, where he was a Notes Editor for the Harvard Law Review.^[7] He graduated magna cum laude from Harvard Law in 1960, becoming a Sheldon Fellow of Harvard University. The fellowship allowed him to travel throughout Europe during 1960–1961.^[8]

On September 10, 1960, Scalia married Maureen McCarthy, whom he met on a blind date while he was at Harvard Law School. Maureen Scalia had been an undergraduate at Radcliffe College when the two met, and subsequently obtained a degree in English from the school.^[9] The couple raised nine children, five boys and four girls.^[10]

Legal career[link]

Scalia began his legal career at Jones, Day, Cockley and Reavis in Cleveland, Ohio, where he worked from 1961 to 1967.^[7] He was highly regarded at Jones Day and would most likely have made partner, but later stated he had long intended to teach.^[11] He became a Professor of Law at the University of Virginia in 1967, moving his family to Charlottesville, Virginia.^[11]

After four years in Charlottesville, in 1971, Scalia entered public service. President Richard Nixon appointed him as the general counsel for the Office of Telecommunications Policy, where one of his principal assignments was to formulate federal policy for the growth of cable television.^[8] From 1972 to 1974, he was the chairman of the Administrative Conference of the United States, a small independent agency that sought to improve the functioning of the federal bureaucracy.^[8] In mid-1974, Nixon nominated him as Assistant Attorney General for the Office of Legal Counsel.^[8] After Nixon's resignation, the nomination was continued by President Gerald Ford, and Scalia was confirmed by the Senate on August 22, 1974.^[12]

In the aftermath of Watergate, the Ford administration was engaged in a number of conflicts with Congress. Scalia repeatedly testified before congressional committees, defending Ford administration assertions of executive privilege in refusing to turn over documents.^[13] Within the administration, Scalia advocated a presidential veto for a bill to amend the Freedom of Information Act, greatly increasing its scope. Scalia's view prevailed and Ford vetoed the bill, but Congress overrode it.^[14] In early 1976, Scalia argued his only case before the Supreme Court, Alfred Dunhill of London, Inc. v. Republic of Cuba. Scalia, on behalf of the U.S. government, argued in support of Dunhill, and that position was successful.^[15] Following Ford's defeat by President Jimmy Carter, Scalia worked for several months at the American Enterprise Institute.^[16] He then returned to academia, taking up residence at the University of Chicago Law School from 1977 to 1982,^[17] though he spent one year as a visiting professor at Stanford Law School.^[18] In 1981, he became the first faculty adviser for the University of Chicago's chapter of the newly founded Federalist Society.^[17]

Judge and nominee[link]

President Reagan and then-nominee Scalia, July 7, 1986

When Ronald Reagan was elected President in November 1980, Scalia hoped for a major position in the new administration. He was interviewed for the position of Solicitor General of the United States, but the position went to Rex E. Lee, to Scalia's great disappointment.^[19] Scalia was offered a seat on the Chicago-based United States Court of Appeals for the Seventh Circuit in early 1982, but declined it, hoping to be appointed to the highly influential United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit). Later that year, Reagan offered Scalia a seat on the D.C. Circuit, which Scalia accepted.^[20] He was confirmed by the United States Senate on August 5, 1982, and was sworn in on August 17, 1982.^[21]

On the D.C. Circuit, Scalia built a conservative record, while winning applause in legal circles for powerful, witty legal writing, which was often critical of the Supreme Court precedents he was bound as a lower-court judge to follow. Scalia's opinions drew the attention of Reagan administration officials, who, according to The New York Times, "liked virtually everything they saw and ... listed him as a leading Supreme Court prospect."^[22] In 1985, though there was then no vacancy on the Court, Reagan administration officials put Scalia on a short list with fellow D.C. Circuit Judge Robert Bork, to be considered if a justice left the Court. In 1986, Chief Justice Warren Burger informed the White House of his intent to retire. Reagan first decided to nominate Associate Justice William Rehnquist to become Chief Justice. This choice meant that Reagan would also have to choose a nominee to fill Rehnquist's seat as associate justice.^[23] Attorney General Edwin Meese, who advised Reagan on the choice, only seriously considered Bork and Scalia.^[24] Feeling that this might well be Reagan's last opportunity to pick a Supreme Court justice, the President and his advisers chose Scalia over Bork as Scalia was ten years younger, and would likely serve longer on the Court.^[23] Scalia also had the advantage of not having Bork's "paper trail";^[25] the elder judge had written controversial articles about individual rights.^[26] Scalia was called to the White House, and accepted Reagan's nomination.^[23]

When Senate Judiciary Committee hearings on Scalia's nomination opened in August 1986, he faced a committee that had just wrangled over the Rehnquist nomination. Witnesses and Democratic senators contended that, before becoming a judge, Rehnquist had engaged in activities designed to discourage minorities from voting. Committee members had little taste for a second battle over Scalia and were in any event reluctant to oppose the first Italian-American Supreme Court nominee.^[27] The judge was not pressed heavily on controversial issues such as abortion or civil rights.^[28] Scalia, who attended the hearing with his wife and nine children seated behind him, found time for a humorous exchange with Democratic Ohio Senator Howard Metzenbaum, whom Scalia had defeated in a tennis match in, as the nominee put it, "a case of my integrity overcoming my judgment".^[29]

Scalia met no opposition from the committee. The full Senate debated Scalia's nomination only briefly, and he was confirmed 98–0 on September 17, 1986. This vote followed Rehnquist's confirmation as Chief Justice by a vote of 65–33 on the same day. One committee member, Democratic Delaware Senator (and future Vice President) Joe Biden, later stated that he regretted not having opposed Scalia "because he was so effective".^[30]

Legal philosophy and approach[link]

Judicial performance[link]

During oral argument before the Court, Scalia asks more questions and makes more comments than any other justice^[31]—and a 2005 study found that he provokes laughter more often than any of his colleagues.^[32] His goal during oral arguments is to get across his position to the other justices.^[33] Kansas University social psychologist Lawrence Wrightsman wrote of Scalia's style, "he communicates a sense of urgency on the bench, and his style is forever forceful".^[31] Since Chief Justice John Roberts joined the Court in 2005, he has taken to questioning counsel in a manner similar to Scalia's and sometimes the two question counsel in seeming coordination.^[33] Dahlia Lithwick of Slate described Scalia's technique:

Scalia doesn't come into oral argument all secretive and sphinxlike, feigning indecision on the nuances of the case before him. He comes in like a medieval knight, girded for battle. He knows what the law is. He knows what the opinion should say. And he uses the hour allocated for argument to bludgeon his brethren into agreement.^[34]

Scalia has, from the start of his career on the Supreme Court, written large numbers of opinions. During his tenure, he has written more concurring opinions than any other justice, and only two justices have written more dissents.^[35] According to Kevin Ring, who compiled a book of Scalia's dissenting and concurring opinions, "His opinions are ... highly readable. His entertaining writing style can make even the most mundane areas of the law interesting."^[36] Conor Clarke of Slate comments on Scalia's written opinions, especially his dissents:

His writing style is best described as equal parts anger, confidence, and pageantry. Scalia has a taste for garish analogies and offbeat allusions—often very funny ones—and he speaks in no uncertain terms. He is highly accessible and tries not to get bogged down in abstruse legal jargon. But most of all, Scalia's opinions read like they're about to catch fire for pure outrage. He does not, in short, write like a happy man.^[37]

At the Supreme Court, justices meet after the case is briefed and argued, and vote on the result. The task of writing the opinion is assigned by the Chief Justice, or if he is in the minority or not participating, by the senior justice in the majority. After the assignment, the justices generally communicate about a case by sending notes and draft opinions to each others' chambers.^[38] In the give and take of opinion writing, Scalia does not compromise his views in order to attract five votes for a majority (unlike the late Justice William J. Brennan, Jr. who would accept less than he wanted in order to gain a partial victory).^[39] Scalia attempts to influence his colleagues by sending them "Ninograms"—short memoranda aimed at trying to get them to include his views in their opinions.^[35]

Scalia enjoys a warm relationship with fellow Justice Ruth Bader Ginsburg, a liberal, with the two attending the opera together, and even appearing together onstage as extras in Washington National Opera's 1994 production of Ariadne auf Naxos.^[31] Ginsburg was a colleague of Scalia's on the D.C. Circuit, and the Scalias and Ginsburgs have dinner together every New Year's Eve.^[40]

Statutory and constitutional interpretation[link]

Judge and Mrs. Scalia (left) and President Reagan (right) watch as Chief Justice Warren Burger swears in William Rehnquist as his successor, September 26, 1986.

Scalia describes himself as an originalist, meaning that he interprets the Constitution of the United States as it would have been understood when it was adopted. According to Scalia, "It's what did the words mean to the people who ratified the Bill of Rights or who ratified the Constitution."^[6]

Constitutional amendments, such as the 1868 Fourteenth Amendment, according to Scalia, are to be interpreted based on their meaning at the time of ratification.^[41] Scalia is often asked how this approach justifies the result in the 1954 case of Brown v. Board of Education, which held that segregated schools were unconstitutional, and which relied on the Fourteenth Amendment for the result.^[42] In a 2009 public "conversation" with Justice Stephen Breyer, Breyer questioned Scalia regarding this approach, indicating that those who ratified the Fourteenth Amendment did not intend to end school segregation. Scalia has called this argument "waving the bloody shirt of Brown", and indicated that he would have joined the first Justice Harlan's solitary dissent in Plessy v. Ferguson, the 1896 case that Brown overruled.^[43]

Scalia vociferously opposes the idea of a living constitution, or the power of the judiciary to modify the meaning of constitutional provisions to adapt them to changing times.^[6] Scalia has warned that if one accepts that constitutional standards should evolve with a maturing society, "the risk of assessing evolving standards is that it is all too easy to believe that evolution has culminated in one's own views."^[44] He compares the Constitution with statutes, which he contends are not understood to change their meaning through time.^[7]

Scalia is a textualist in statutory interpretation, believing that the ordinary meaning of the statute should govern.^[45] In interpreting statutes, he does not look to legislative history. In the 2006 case of Zedner v. United States, Scalia joined the majority opinion written by Justice Samuel Alito—all except one paragraph of the opinion, in which Justice Alito cited legislative history. In a concurring opinion in that case, Scalia noted, "The use of legislative history is illegitimate and ill advised in the interpretation of any statute."^[46]

Scalia's originalist approach has come under attack from critics, who say that he only sees in the Constitution that which supports his personal beliefs. Those critics have stated that Scalia's true agenda is to reverse the decisions of the Warren and Burger Courts, which shaped the law in the 1960s and 1970s.^[6] Ralph Nader has stated that Scalia's claim to an originalist philosophy is inconsistent with the justice's acceptance of the extension of certain constitutional rights to corporations when at the time of the Fourteenth Amendment's ratification, corporations were not commonly understood to possess constitutional rights.^[47] Nader's view, however, preceded the Court's 2010 decision in Citizens United v. Federal Election Commission. Scalia, in his concurrence in that case, traced his understanding of the rights of groups of individuals at the time of the adoption of the Bill of Rights. His argument is based on the lack of an exception for groups such as corporations in the free speech guarantee in the Bill of Rights, and on several examples of corporate political speech from the time of the adoption of the Bill of Rights.^[48] Professor Thomas Colby of The George Washington University National Law Center stated that Scalia's votes in Establishment Clause cases (the provision of the First Amendment that governs the relationship between church and state) do not stem from originalist views, but from conservative political convictions.^[49]

Jurisprudence in practice[link]

Governmental structure and powers[link]

Separation of powers[link]

The 2009–2010 Court, with President Obama, Vice President Biden and retiring justice David Souter with Scalia fourth from right

It is Scalia's view that clear lines of separation among the Executive, Legislative, and Judicial Branches follow directly from the Constitution, with no branch allowed to exercise powers granted to another branch.^[50] In his early days on the Court, he authored a powerful—and solitary—dissent in 1988's Morrison v. Olson, in which the Court's majority upheld the Independent Counsel law. Scalia's thirty-page draft dissent surprised Justice Harry Blackmun for its emotional content; Blackmun felt it could be cut down to ten pages if Scalia omitted "the screaming".^[51] Scalia indicated that the law was an unwarranted encroachment on the Executive Branch by the Legislative. He warned, "Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing ... But this wolf comes as a wolf."^[51]

The 1989 case of Mistretta v. United States challenged the United States Sentencing Commission, an independent body within the Judicial Branch whose members (some of whom were federal judges) were removable only for good cause. The petitioner argued that the arrangement violated separation of powers, and that the United States Sentencing Guidelines promulgated by the Commission were invalid. Eight justices joined in the majority opinion written by Blackmun, upholding the Guidelines as constitutional.^[52] Scalia dissented, stating that the issuance of the Guidelines was a lawmaking function that Congress could not delegate,^[53] and dubbed the Commission "a sort of junior-varsity Congress".^[51]

In 1996, Congress passed the Line Item Veto Act which allowed the President to cancel items from an appropriations bill (a bill authorizing spending) once passed into law. The statute was challenged the following year. The matter rapidly reached the Supreme Court, which struck down the law as violating the Presentment Clause of the Constitution, which governs what the President may do with a bill once it has passed both Houses of Congress.^[54] Scalia dissented, seeing no Presentment Clause difficulties and feeling that the act did not violate separation of powers. Scalia indicated that he felt that authorizing the President to cancel an appropriation was no different from allowing him to spend an appropriation at his discretion, which had long been accepted as constitutional.^[55]

Detainee cases[link]

In 2004, in Rasul v. Bush, the Court held that federal courts had jurisdiction to hear habeas corpus petitions brought by detainees at the Guantanamo Bay detainment camp. Scalia accused the majority of "spring[ing] a trap on the Executive" by ruling that it could hear cases involving persons at Guantanamo when no federal court had ever ruled that it had the authority to hear cases involving people there.^[56]

Scalia (joined by Justice John Paul Stevens) also dissented in the 2004 case of Hamdi v. Rumsfeld, involving Yaser Hamdi, an American citizen detained in the United States on the allegation he was an enemy combatant. The Court held that the post-9/11 congressional Authorization for the Use of Military Force (AUMF) amounted to authorization for the suspension of the writ of habeas corpus and the Government could continue to detain Hamdi. Scalia wrote that the AUMF could not be read to suspend habeas corpus and that the Court, faced with legislation by Congress which did not grant the President power to detain Hamdi, was trying to "Make Everything Come Out Right".^[57]

In March 2006, Scalia gave a talk at the University of Fribourg, in Switzerland, where he was asked about detainee rights. He responded, "Give me a break ... I had a son on that battlefield and they were shooting at my son, and I'm not about to give this man who was captured in a war a full jury trial. I mean it's crazy."^[58] Though Scalia was not referring to any particular individual, the Supreme Court was about to consider the case of Salim Ahmed Hamdan, supposed driver to Osama bin Laden, who was challenging the military commissions at Guantanamo Bay.^[58] A group of retired military officers that supported Hamden's position asked Scalia to recuse himself, or step aside from hearing the case, which he declined to do.^[59] The Court held, 5–3, in Hamdan v. Rumsfeld, that the federal courts had jurisdiction to consider Hamdan's claims; Scalia, in dissent, contended that any ability by the Court to consider Hamdan's petition had been eliminated by the jurisdiction stripping Detainee Treatment Act of 2005.^[60]

Federalism[link]

In federalism cases, pitting the powers of the federal government against those of the states, Scalia has often taken the states' positions. In 1997, the Supreme Court considered the case of Printz v. United States, a challenge to certain provisions of the Brady Handgun Violence Prevention Act which required chief law enforcement officers of localities in states to perform certain duties. In Printz, Scalia wrote the Court's majority decision. The Supreme Court ruled the provision which imposed those duties unconstitutional as violating the Tenth Amendment, which reserves to the states and to the people those powers not granted to the Federal Government.^[61] In 2005, Scalia concurred in Gonzales v. Raich, which read the Commerce Clause to hold that Congress could ban the use of marijuana even where states approve its use for medicinal purposes. Scalia opined that the Commerce Clause, together with the Necessary and Proper Clause, permitted the regulation. In addition, Scalia felt that Congress may regulate intrastate activities if doing so is a necessary part of a more general regulation of interstate commerce.^[62]

Scalia has taken a broad view of the Eleventh Amendment, which bars certain lawsuits against states in the federal courts. In his 1989 dissent in Pennsylvania v. Union Gas Co., Scalia stated that there was no intent on the part of the Framers to have the states surrender any sovereign immunity, and that the case that provoked the Eleventh Amendment, Chisholm v. Georgia, came as a surprise to them. Professor Ralph Rossum, who wrote a survey of Scalia's constitutional views, suggests that the justice's view of the Eleventh Amendment is actually contradictory to the language of the Amendment.^[63]

Individual rights[link]

Abortion[link]

Scalia has argued that there is no constitutional right to abortion, and that if the people desire legalized abortion, a law should be passed to accomplish it.^[6] Scalia wrote in his dissenting opinion in the 1992 case of Planned Parenthood v. Casey,

The States may, if they wish, permit abortion on demand, but the Constitution does not require them to do so. The permissibility of abortion, and the limitations upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.^[64]

Scalia has repeatedly called upon his colleagues to strike down Roe v. Wade. Scalia hoped to find five votes to strike down Roe in the 1989 case of Webster v. Reproductive Health Services, but was not successful in doing so. Justice Sandra Day O'Connor authored the decision of the Court, allowing the abortion regulations at issue in the case to stand, but not overriding Roe. Scalia concurred only in part.^[65] Scalia wrote that, "Justice O'Connor's assertion, that a 'fundamental rule of judicial restraint' requires us to avoid reconsidering Roe, cannot be taken seriously."^[66] He noted, "We can now look forward to at least another Term of carts full of mail from the public, and the streets full of demonstrators."^[67]

The Court returned to the issue of abortion in the 2000 case of Stenberg v. Carhart, in which it invalidated a Nebraska statute outlawing partial-birth abortion. Justice Stephen Breyer wrote for the Court that the law was unconstitutional as it did not allow an exception for the health of the mother. Scalia dissented, comparing the Stenberg case with two of the most reviled cases in Supreme Court history: "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 ... proscribed by this statute is so horrible that the most clinical description of it evokes a shudder of revulsion."^[68]

In 2007, the Court upheld a federal statute banning partial-birth abortion in Gonzales v. Carhart.^[69] University of Chicago law professor Geoffrey R. Stone, a former colleague of Scalia's, criticized Gonzales, stating that religion had influenced the outcome as all five justices in the majority were Catholic, whereas the dissenters were Protestant or Jewish.^[70] This angered Scalia to such an extent that he stated he would not speak at the University of Chicago as long as Stone is there.^[71]

Race, gender, and sexual orientation[link]

Scalia has generally voted to strike down laws which make distinctions by race, gender, or sexual orientation. In 1989, he concurred with the Court's judgment in City of Richmond v. J.A. Croson Co., in which the Court applied strict scrutiny to a city program requiring a certain percentage of contracts to go to minorities, and struck down the program. Scalia did not join the majority opinion, however. He disagreed with O'Connor's opinion, for the Court, that states and localities could institute race-based programs, if they identified past discrimination, and if the program was designed to remedy the past racism.^[72] Five years later, in Adarand Constructors, Inc. v. Peña he concurred in the Court's judgment and in part with the opinion which extended strict scrutiny to Federal programs. Scalia noted in that matter his view that government can never have a compelling interest in making up for past discrimination by racial preferences,

To pursue the concept of racial entitlement – even for the most admirable and benign of purposes – is to reinforce and preserve for future mischief the way of thinking that produced race slavery, race privilege and race hatred. In the eyes of government, we are just one race here. It is American.^[73]

In the 2003 case of Grutter v. Bollinger, involving racial preferences in the University of Michigan's law school, Scalia mocked the Court majority's finding that the school was entitled to continue using race as a factor in admissions so as to promote diversity, and to increase "cross-racial understanding". Scalia noted,

This is not, of course, an "educational benefit" on which students will be graded on their Law School transcript (Works and Plays Well with Others: B+) or tested by the bar examiners (Q: Describe in 500 words or less your cross-racial understanding). For it is a lesson of life rather than law—essentially the same lesson taught to (or rather learned by, for it cannot be "taught" in the usual sense) people three feet shorter and twenty years younger than the full-grown adults at the University of Michigan Law School, in institutions ranging from Boy Scout troops to public-school kindergartens.^[74]

Scalia has argued that laws that make distinctions between genders should be subjected to intermediate scrutiny, requiring that the gender classification be substantially related to important government objectives.^[75] When, in 1996, the Court upheld a suit brought by a woman who wished to enter the Virginia Military Institute in the case of United States v. Virginia, Scalia filed a lone, lengthy dissent. Scalia felt that the Court, in requiring Virginia to show an "extremely persuasive justification" for the single-sex admissions policy, had redefined intermediate scrutiny in such a way "that makes it indistinguishable from strict scrutiny".^[76]

In one of the final decisions of the Burger Court, the Court ruled in 1986 in Bowers v. Hardwick that homosexual sodomy was not protected by the right of privacy and could be criminally prosecuted by the States.^[77] In 1995, however, that ruling was effectively gutted by Romer v. Evans, which struck down a Colorado state constitutional amendment, passed by popular vote, which forbade anti-discrimination laws being extended to sexual orientation.^[78] Scalia dissented from the opinion by Justice Kennedy, believing that Bowers had protected the right of the states to pass such measures, and that the Colorado amendment was not discriminatory, but merely prevented homosexuals from gaining favored status under Colorado law.^[79] Scalia later said of Romer, "And the Supreme Court said, 'Yes, it is unconstitutional.' On the basis of—I don't know, the Sexual Preference Clause of the Bill of Rights, presumably. And the liberals loved it, and the conservatives gnashed their teeth."^[80]

In 2003, Bowers was formally reversed by Lawrence v. Texas, from which Scalia dissented. According to Mark V. Tushnet in his survey of the Rehnquist Court, during the oral argument in the case, Scalia seemed so intent on making the state's argument for it that the Chief Justice intervened: "Maybe we should go through counsel."^[81] According to his biographer, Joan Biskupic, Scalia "ridiculed" the majority in his dissent for being so ready to cast aside Bowers when many of the same justices had refused to overturn Roe in Planned Parenthood v. Casey.^[82]