I think he's just trying to be intellectually consistent. Abortion is NOT a social issue that was addressed by the Founders in the Constitution. So, what does that mean. It means that, in Scalia's opinion, it should be something that is addressed, if it's addressed at all, in the legislature, and specifically in the state legislature.
Just like he doesn't find any guarantee of abortion in the Constitution, he also doesn't find any guarantee from abortion.
Scalia wants complicated, contentious social issues decided in the place that the Framers wanted them decided - the Legislative Branch. I think on balance, this is the right approach.
Now, that doesn't necessarily mean that because our understanding of science is so much further advanced today than it was in 1776, legal doctrine shouldn't reflect the scientific realities of a modern society. It's tough to look at a 3D ultrasound and then argue that's not a person, endowed with same inalienable rights as anyone else. I'm not saying - and I bet Scalia wouldn't either - that argument is wholly without merit. But, because of the contentiousness of the issue, he'd still rather give deference to the legislature.
All things considered, the country would be much better off, and these kinds of issues would be much less divisive - strangely - if we did just that.
Yes, I believe that the word "posterity" in the Preamble indicates that the Founding Fathers believed that those not yet born were to enjoy full constitutional rights.
Just like he doesn't find any guarantee of abortion in the Constitution, he also doesn't find any guarantee from abortion.
Yet he must certainly believe that the Constitution TWICE FORBIDS the legal taking of life without due process.
Now, that doesn't necessarily mean that because our understanding of science is so much further advanced today than it was in 1776, legal doctrine shouldn't reflect the scientific realities of a modern society. It's tough to look at a 3D ultrasound and then argue that's not a person, endowed with same inalienable rights as anyone else. I'm not saying - and I bet Scalia wouldn't either - that argument is wholly without merit. But, because of the contentiousness of the issue, he'd still rather give deference to the legislature.
Advances in modern medicine aside, ALL of the Founding Fathers would have accepted Jeremiah 1:5 as proof of personhood.
The unfortunate reality of leaving it to the legislatures would mean that leftist states would leave abortion legal and the fact of the matter is that these states are where the huge majority of abortions are performed.