Conservatives, Often Wary of Foreign Law, Look Abroad in Abortion Case
The New York Times
When the Supreme Court hears arguments this fall in a big abortion case from Mississippi, it will consider dueling accounts of international practices.
WASHINGTON — Not so long ago, conservatives found it maddening when U.S. judges cited foreign law in their decisions interpreting the Constitution.
When the Supreme Court took account of international trends in a 2005 decision eliminating the juvenile death penalty, for instance, Justice Antonin Scalia wrote a furious dissent. “The basic premise of the court’s argument — that American law should conform to the laws of the rest of the world — ought to be rejected out of hand,” he wrote.
The justice also accused his colleagues of opportunism and hypocrisy. In other areas of the law, he wrote, the court had ignored conservative foreign decisions on criminal procedure, religion and, notably, abortion. “To invoke alien law when it agrees with one’s own thinking, and ignore it otherwise, is not reasoned decision-making, but sophistry,” Justice Scalia wrote.
