Scalia Says Roe v. Wade Does Not Have Precedential Value

In his new book, Supreme Court Justice Antonin Scalia writes that the court should not give stare decisis effect, or precedential value, to Roe v. Wade. Under the doctrine of stare decisis, decisions made by the court must be respected, even if the justices interpret the decision to be based on “misguided readings of relevant texts.” Scalia writes in his book that Roe v. Wade, the 1973 Supreme Court decision that upheld a woman’s right to an abortion, “declared unconstitutional state statutes that in no way contradicted any specific provision of the Constitution.”

Scalia has previously made public statements against Roe v. Wade and against women’s right to equal protection under the US Constitution. In a speech at US Hastings in 2010, Scalia called the Roe v. Wade decision “total absurdity” because it was based on protecting a right to privacy, which Scalia says the constitution does not grant. He also said, in an interview in 2011, that the equal protection clause of the 14th amendment to the Constitution does not protect against discrimination on the basis of gender. In the interview, Scalia said, “Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that.”

In reaction to Scalia’s statement that the 14th amendment does not protect women, Marcia Greenberger, founder and co-president of the National Women’s Law Center, told the Huffington Post, “Then he says that there’s nothing the court will do to protect women from government-sanctioned discrimination against them. And that’s a pretty shocking position to take in 2011. It’s especially shocking in light of the decades of precedents and the numbers of justices who have agreed that there is protection in the 14th Amendment against sex discrimination, and struck down many, many laws in many, many areas on the basis of that protection.”

New York Times 6/15/12; the National Law Journal 6/15/12; Huffington Post 5/25/12; the Raw Story 1/3/11, 9/19/12

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