Here is a question I wish I could ask Scalia. He opines that abortion was illegal when the Constitution was ratified, and therefore Roe v. Wade is wrongly decided.
He's probably wrong about the history of abortion. According to common law historians writing in the early 19th century, abortion was not illegal under the common law unless the woman felt the fetus moving, known as "quickening." Typically occurs around 15 weeks. This is recited in the earliest cases I've been able to find, circa 1800-1810.
England outlawed abortion in 1803, and the Constituton was ratified in 1789. American states did not outlaw abortion until much later, and there was a common law exception to save the life or health of the mother, which was a defense to felony prosecution.
Should this matter? Would it matter to Scalia?
Seems to me that the argument against, say, legalizing sodomy, is that it was illegal when the Constitution was ratified. So, seems to me that the flip side, that abortion prior to quickening was legal, and (for that matter) smoking marijuana or taking opiates was legal, means that they should remain legal.
Why the inconsistency? |
