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Conclusion FEW, IF ANY, THESES in controversial areas of constitutional law can be maintained with certainty, because few, if any, supporting arguments are impregnable and decisive. In the main, a thesis is accepted if it is self-consistent and accords better than its competitors with the words of the Constitution, authoritative interpretations of those words, our political institutions, our political ideals, and our moral aspirations (see the Introduction). Controversy may reign, however , because the Constitution is written in general terms, such as "liberty ," "due process of law," and "unreasonable searches and seizures," which are sUsct:ptible of various interpretations. Accordingly, authoritative interpretatiions of those words often contradict one another. What is more, political institutions, political ideals and moral aspirations all evolve in response to such factors as economic development, technological innovation, population growth and demographic change. So constitutional interpretations that conformed at one time to our political institutions, political ideals, and moral aspirations may at a later time clash widt one, two, or all three of these. Such was the case, for example, with leconomic substantive due process (see Chapter 1). In this environment of uncertainty and flux, the grandest claim that can reasonably be made for constitutional interpretations in controversial areas of the law is that they are on balance, all things considered, superior to the alternatives that have so far been proposed. I make this claim for the Establishment Clause approach to legislation regarding abortion. Arguments supporting this claim occupy the bulk of the preceding chapters. This concluding chapter is limited to considering one view 245 246 Conclusion that has not yet been addressed squarely in the present work, isolating the fundamental flaw in the Roe approach to ab9£tion-related legislation , reiterating the rationale that justifies the Establishment Clause approach , and reviewing some advantages of that approach. Justice Scalia's View The view not yet addressed squarely in the present work is Justice Scalia's opinion that abortion is a political matter to be dealt with by state legislatures, not a matter of constitutional law to be dealt with by the courts. He wrote in Webster v. Reproductive Health Services (1989) that "the answers to most of the cruel questions posed [by abortion] are political and not juridical." So the Court should yield "sovereignty over a field where it has little proper business."1 "[Our] retaining control, through Roe, of what I believe to be, and many of our citizens recognize to be, a political issue, continuously distorts the public perception of this Court."2 Thus, as Justice Blackmun observed, "Scalia would overrule Roe ... and would return to the States virtually unfettered authority to control the ... decision whether to carry a fetus to term."3 Of course, I agree with Scalia's rejection of Roe. As I explained in Chapters 1,2, and 7, I consider Roe to be in several respects fundamentally and fatally flawed. I offered an alternative that, I argue, is mandated by the Establishment Clause. That argument contains a reply to Scalia. To the extent that the Establishment Clause mandates answers to questions about abortion-related legislation, the issues remain juridical , not political. I now present some additional reasons for rejecting Scalia's view that abortion's availability should be decided by state legislation. Pivotal to many issues regarding abortion is the status of the unborn. As Ronald Dworkin pointed out, if the unborn have a fundamental (constitutional ) right to life, then no state would be entitled to deny it "equal protection of the laws." Legislation restricting severely the availability of abortion would be not only permitted but required by the Constitution .4 If, in contrast, the unborn do not have a fundamental (constitutional ) right to life, then legislation restricting severely the availability of abortion would be deprived of its most obvious purpose. Therefore, other purposes would have to be featured in the justification of such legislation. These purposes may be related to such matters as cost, medical safety, population growth, and (perhaps) punishment (of illicit sex). It is certainly questionable whether such purposes as these could enable restrictive abortion laws to pass the minimal constitutional hur- Conclusion 247 dIe, applied to all legislation, of bearing a rational relationship to a legitimate purpose. But that issue is beside the present point. The point here is that a decision regarding the constitutional status of the unborn is a precondition to deciding which arguments are needed and relevant where abortion-related legislation is concerned. Before any further arguments can be evaluated properly, it must be...


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