Human Nature

Hypocritic Oath

Scalia on abortion vs. Scalia on assisted suicide.

On Tuesday, the U.S. Supreme Court handed down a ruling on assisted suicide. On Wednesday, it handed down a ruling on abortion. As Justice Antonin Scalia has often observed, judges are supposed to stick to principles, not change them to suit personal preferences from one issue to the next. But evidently, that advice doesn’t apply to Scalia.

Scalia didn’t file a separate opinion in the abortion case, Ayotte v. Planned Parenthood of Northern New England. To find his principles of abortion jurisprudence, you have to go back to three prior cases: Webster v. Reproductive Health Services (1989), Planned Parenthood v. Casey (1992), and Stenberg v. Carhart (2000).

Principle 1 is to beware value judgments disguised as fact or reason. In Casey, Scalia derided his colleagues for reaffirming Roe v. Wade. He accused them of invoking “what the Court calls ‘reasoned judgment’ … which turns out to be nothing but philosophical predilection and moral intuition.” In Stenberg, he faulted the other justices for applying a standard that “can not be demonstrated true or false by factual inquiry or legal reasoning. It is a value judgment.”

That was Scalia’s principle on abortion. On assisted suicide, however, the principle gets in his way. The latest case, Gonzales v. Oregon, involves a law, directly approved twice by Oregon voters, that lets doctors prescribe drugs so terminally ill people can kill themselves. Years ago, then-Sen. John Ashcroft of Missouri asked then-Attorney General Janet Reno to block the law. She refused, citing states’ rights. Ashcroft asked his Senate colleagues to pass legislation to block the law, but they refused, too. So, when President Bush took office, Ashcroft got Reno’s job, ordered up an in-house legal memo that said assisted suicide wasn’t a “legitimate medical purpose,” and declared that the Controlled Substances Act of 1970 gave him authority to strip the license of any doctor who prescribed lethal drugs under the Oregon law.

Six of Scalia’s colleagues conclude that what counts as a “legitimate medical purpose” is a value judgment and that on such questions, a 30-year-old law aimed at hippie stoners doesn’t authorize the U.S. attorney general of 2001 to superimpose his moral intuition on the assisted-suicide-policy decision of Oregon voters. Scalia, however, says Ashcroft’s definition of “legitimate medical purpose” isn’t a value judgment; it’s pure reason. He repeatedly calls it the “most natural” and “most reasonable” interpretation of that phrase.

Scalia chides the court’s majority for confusing “the normative inquiry of what the boundaries of medicine should be—which it is laudably hesitant to undertake—with the objective inquiry of what the accepted definition of ‘medicine’ is.” Those silly justices—they applied Scalia’s principle when it didn’t lead to the result he wanted! To justify Ashcroft’s interpretation, you have to spin it as objective, not subjective. Accordingly, Scalia opines, “The use of the word ‘legitimate’ connotes an objective standard of ‘medicine,’ and our presumption that the CSA creates a uniform federal law regulating the dispensation of controlled substances … means that this objective standard must be a federal one.”

Principle 2 is to stick to the text of what you’re evaluating—the Constitution, laws, regulations—and avoid reading new meanings into it. In Casey and Stenberg, Scalia said the Constitution can’t protect a right to abortions, since it doesn’t mention them. He criticized Roe for asserting “a value found nowhere in the constitutional text.” He insisted that “the text of the Constitution, and our traditions, say what they say and there is no fiddling with them.” He chided his colleagues for suggesting that “the Constitution has an evolving meaning.” Wednesday’s ruling in Ayotte, which Scalia joins, reaffirms, “The touchstone for any decision about remedy is legislative intent.”

Scalia’s six colleagues follow this principle scrupulously in the assisted-suicide case. Since the CSA’s text applies to drug addiction and recreational abuse, and since Congress “relied not on Executive ingenuity, but rather on specific legislation” when it wanted to broaden the law’s coverage, the justices conclude that the CSA says what it says and shouldn’t be fiddled with. Scalia, however, discards legislative intent and discovers the law’s evolving meaning. “Even assuming, however, that the principal concern of the CSA is the curtailment of ‘addiction and recreational abuse,’ there is no reason to think that this is its exclusive concern,” he writes. “We have repeatedly observed that Congress often passes statutes that sweep more broadly than the main problem they were designed to address.”

Principle 3 is to defer to the states. In Stenberg, Scalia urged his colleagues to “return [abortion] to the people—where the Constitution, by its silence on the subject, left it—and let them decide, State by State, whether this practice should be allowed.” In Casey, he warned that the court’s job wasn’t “determining some kind of social consensus,” and he explained the arrogance and folly of nationalizing moral issues:

Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. … Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level. As with many other issues, the division of sentiment within each State was not as closely balanced as it was among the population of the Nation as a whole, meaning not only that more people would be satisfied with the results of state by state resolution, but also that those results would be more stable. … [B]y continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.

It’s a pretty compelling argument. Not compelling enough to sustain the loyalty of its author, however. In the assisted-suicide case, he argues exactly the opposite: “The fact that many in Oregon believe that the boundaries of ‘legitimate medicine’ should be extended to include assisted suicide does not change the fact that the overwhelming weight of authority (including the 47 States that condemn physician-assisted suicide) confirms that they have not yet been so extended.”

So much for letting the people of each state decide. What we need is a rigid national rule, validated by the Supreme Court’s determination of a social consensus.

I’d settle for a rigid rule in Scalia’s head.