Supreme Court Associate Justice Antonin Scalia, who is Catholic, says the U.S. Constitution gives the government the right to carry out capital punishment and that fetuses have no constitutional protection from abortion because they aren't counted as persons when figuring how many representatives a state will have in Congress.
Speaking at Notre Dame in February, 1997, Scalia spelled out his conviction that the Constitution should be interpreted to mean only what the authors intended it to mean at the time the original articles and the amendments were written.
In his "On Interpreting the Constitution" talk, delivered to an audience composed mostly of students, Scalia made no mention of his personal beliefs about the death penalty or abortion, both of which the Catholic Church has traditionally opposed.
However, he argued that the death penalty is constitutional because the 14th Amendment (1868) forbids the adoption of any law that "deprive[s] any person of life, liberty, or property, without due process of law. . . ." It follows that the government could adopt a law carrying a punishment that deprives one of life, so long as due process were followed in its enforcement.
Scalia's opinion that the Constitution doesn't preclude abortion is based on the section of the 14th Amendment immediately following the due-process clause. It reads, "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State. . . ."
The associate justice said he doesn't believe the amendment's authors intended fetuses to be counted in apportionment for congressional representation, and if they don't count in apportionment, they don't qualify for protection from loss of "life, liberty, or property."
Scalia emphasized, however, that contentious issues such as these are best settled by legislatures, not the Supreme Court.
"My qualifications as a lawyer don't give me any special powers to know . . . what constitutes an undue burden on a woman's right to an abortion [any better] than anyone else. If you want a right to an abortion, pass a law. If you don't want the right to an abortion, pass a law."