Antonin Scalia

“ 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 ours. ”

“ I fail to see how anyone can think that saying a statute does not impose an unconstitutional burden under any standard, including the undue burden test, amounts to adopting the undue burden test as the exclusive standard. The Court's citation of Hodgson as reflecting Justice KENNEDY's and Justice O'CONNOR's “shared premises,” ante, at 2821, is similarly inexplicable, since the word “undue” was never even used in the former's opinion in that case. I joined Justice KENNEDY's opinions in both Hodgson and Akron II ”

“ It seems particularly ungrateful to carve the trimester framework out of the core of Roe, since its very rigidity (in sharp contrast to the utter indeterminability of the “undue burden” test) is probably the only reason the Court is able to say, in urging stare decisis, that Roe “has in no sense proven ‘unworkable,’ ” ante, at 2809. I suppose the [p994] Court is entitled to call a “central holding” whatever it wants to call a “central holding”-which is, come to think of it, perhaps one of the difficulties with this modified version of stare decisis. ”

“ Quite to the contrary, by 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. ”

“ A State's choice between two positions on which reasonable people can disagree is constitutional even when (as is often the case) it intrudes upon a “liberty” in the absolute sense. Laws against bigamy, for example-with which entire societies of reasonable people disagree-intrude upon men and women's liberty to marry and live with one another. ”

“ Any regulation of abortion that is intended to advance what the joint opinion concedes is the State's “substantial” interest in protecting unborn life will be “calculated [to] hinder” a decision to have an abortion. It thus seems more accurate to say that the joint opinion would uphold abortion regulations only if they do not unduly hinder the woman's decision. ”

“ Precisely why is it that, at the magical second when machines currently in use (though not necessarily available to the particular woman) are able to keep an unborn child alive apart from its mother, the creature is suddenly able (under our Constitution) to be protected by law, whereas before that magical second it was not? That makes no more sense than according infants legal protection only after the point when they can feed themselves.↑ The joint opinion is not entirely faithful to this principle, however. ”

“ And “viability” is no longer the “arbitrary” dividing line previously decried by Justice O'CONNOR in Akron I, id., at 461, 103 S.Ct., at 2509; the Court now announces that “the attainment of viability may continue to serve as the critical fact,” ante, at 2811. [5] It is difficult to [p990] maintain the illusion that we are interpreting a Constitution rather than inventing one, when we amend its provisions so breezily. ”

“ The Court's contention, ante, at 2811, that the only way to protect childbirth is to protect abortion shows the utter bankruptcy of constitutional analysis deprived of tradition as a validating factor. It drives one to say that the only way to protect the right to eat is to acknowledge the constitutional right to starve oneself to death.↑ Justice BLACKMUN's parade of adjectives is similarly empty: Abortion is among “ ‘the most intimate and personal choices,’ ” ante, at 2844 ”

“ Those adjectives might be applied, for example, to homosexual sodomy, polygamy, adult incest, and suicide, all of which are equally “intimate” and “deep [ly] personal” decisions involving “personal autonomy and bodily integrity,” and all of which can constitutionally be proscribed because it is our unquestionable constitutional tradition that they are proscribable. It is not reasoned judgment that supports the Court's decision ”

“ Justice Curtis's warning is as timely today as it was 135 years ago:
“ [W] hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean.” Dred Scott v. ”

“ To the contrary, its efforts at clarification [p986] make clear only that the standard is inherently manipulable and will prove hopelessly unworkable in practice.
The joint opinion explains that a state regulation imposes an “undue burden” if it “has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Ibid.; see also ante, at 2820-2821. An obstacle is “substantial,” we are told, if it is “calculated [,] [not] to inform the woman's free choice, [but to] hinder it.” ”

“ But it is [p984] obvious to anyone applying “reasoned judgment” that the same adjectives can be applied to many forms of conduct that this Court (including one of the Justices in today's majority, see Bowers v. Hardwick, 478 U.S. 186, 106 S.Ct. 2841, 92 L.Ed.2d 140 (1986) ) has held are not entitled to constitutional protection-because, like abortion, they are forms of conduct that have long been criminalized in American society. ”

“ See id., at 520, 109 S.Ct., at 3058 (rejecting the view that abortion is a “fundamental right,” instead inquiring whether a law regulating the woman's “liberty interest” in abortion is “reasonably designed” to further “legitimate” state ends) . The same motive also apparently underlies the joint opinion's erroneous citation of the plurality opinion in Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 506, 110 S.Ct. 2972, 2977, 111 L.Ed.2d 405 (1990) ( Akron II ) (opinion of KENNEDY, J.) , as applying the undue burden test. ”

“ In today's version, even health measures will be upheld only “ if they do not constitute an undue burden,” ante, at 2821 (emphasis added) . Gone too is Justice O'CONNOR's statement that “the State possesses compelling interests in the protection of potential human life ... throughout pregnancy,” Akron I, supra, 462 U.S., at 461, 103 S.Ct., at 2509 (dissenting opinion) (emphasis added) ; see also Ashcroft, supra, 462 U.S., at 505, 103 S.Ct., at 2532 (O'CONNOR, J., concurring in judgment in part and dissenting in part) ”