Mary Ziegler has an article in The Atlantic talking about the future of abortion jurisprudence in light of Anthony Kennedy’s retirement from the Supreme Court. Among other things, she speculates that overturning Roe is now a probability. Furthermore, she writes:
It is even possible that abortion foes will ask the justices to go further, recognizing a constitutional right to life that would mean the criminalization of abortion nationwide. Certainly, abortion opponents have always wanted more than just the end of Roe.
But even without Kennedy, the odds of such a ruling seem remote. The kind of strict-constructionist judge Trump promises is usually skeptical about the recognition of rights not spelled out in the text of the Constitution. Antonin Scalia, the model for Trump’s new selection, famously criticized decisions identifying unenumerated rights, including ones that conservatives might support, like protections for parents. Even on a reconfigured Court, the right to life might be a hard sell. [underline mine]
The underlined portions jumped off the page at me. What a rare, candid statement. This author apparently believes that the Constitution contains no guaranteed right to life. Furthermore, she thinks that it would be a “hard sell” even for originalist justices to recognize such in the Constitution. Continue Reading →