Justice Scalia, publicity hound, was out again promoting the true faith. For instance, chuckle, he noted that Bush v. Gore was basically Gore's fault [Bush brought the case], that the Supreme Court basically was forced to take the case [four justices who wanted to deny cert. thought otherwise], and anyway, Bush won the recount [the matter is an open question, and besides, that was not really the point]. So, I hate to even partially defend the guy, but Al Franken (who was at the event and sparred with him a bit) two days in a row on his show was a bit too full of himself for me to do otherwise.
Anyway, I do not like when either side uses twisted reasoning, especially respecting controversial matters. In fact, that is a major reason why such matters boggle down to people talking past each other, each doing so by promoting only part of the facts of the case. And, such was the case here -- Franken on his show noted that Scalia told him that abortion was always illegal up to Roe v. Wade, and Franken noted this was why Scalia is against the decision. In other words, Scalia supports an originalist point of view, and is beholden to the state of abortion law when the Constitution was ratified.
But, says Franken, abortion was not illegal when the Constitution was ratified. It was only made so in the early and mid-1800s, and only after around the fourth month (quickening -- when movement is felt). Actually, that was the state of the law under English common law -- when abortion was made illegal, it tended to be done across the board in part because of advancements of understanding of embryo/fetal development as well as fear of the danger of the procedure overall. At any rate, Franken cheekily added that we shouldn't worry about Alito -- original understanding would protect abortion rights, and assumingly Alito supports it like Scalia does. After all, (I'd add) he's "Scalito," right?
Two problems. (1) Roe arose from securities of the Fourteenth Amendment, which was ratified after abortion was made illegal -- Justice Rehnquist in dissent made sure to underline the point, and Scalia did later on. So, if anything, Scalia was only half-wrong, and on a point that does not hurt his cause too much. True, the back-up argument in Roe (voiced in the lower court) was the Ninth Amendment, which was ratified back in the 18th Century, but again as applied to the states it works hand in hand with the Fourteenth (see, Justice Goldberg's Griswold concurrence). (2) Scalia also argues that the Constitution as such does not say anything about abortion. Thus, it does not matter if it was legal in 1788, any more than it matters that selling pot/hemp was.
But, attacking strawman versions of your opponent is nothing new. Heck, I'm sure I was guilty of doing it. I am a bit less cocky about it than Al Franken though. We all have our shtick, I guess.