Women's Enews, July 26, 2005
Is One to Watch on Abortion
Author : Cynthia L. Cooper
(WOMENSENEWS)--The possible views of Judge John
Roberts Jr., the president's nominee to the
vacancy on the U.S. Supreme Court, is not the
only concern for abortion rights lawyers. Reproductive
rights experts are increasingly turning their
scopes to one of the justices who is not going
anywhere--Supreme Court Justice Anthony M.
Kennedy, who has sometimes supported pro-choice
views and sometimes rejected them.
"He is definitely one of the people to watch,"
said Louise Melling, director of the Reproductive
Freedom Project of the American Civil Liberties
Union, headquartered in New York. The surprise
retirement of Justice Sandra Day O'Connor,
a swing vote on abortion, has shifted attention
to Kennedy, she said. "Kennedy was key
before O'Connor retires. Kennedy is even more
key now," said Melling.
Kennedy, a Republican from California, celebrated
his 69th birthday last week on July 23. Until
now, his seat on the bench has placed him to
the immediate left of Justice O'Connor, who
announced her decision to step down on July
1. Both were appointed for life by President
Ronald Reagan, but Kennedy, who joined the
nine-member high court in 1988 at the age of
51, is expected to serve for many more years.
Both Kennedy and O'Connor have been moderates
on abortion since the early 1990s, although
the two did not always agree, with Kennedy,
a Catholic, taking a more conservative view
of abortion rights than O'Connor in at least
one major case. Each has walked a fine line
between recognizing a woman's constitutional
right to choose and allowing states to impose
restrictions on that right.
As pro-choice and anti-choice activists scramble
to count up five justices who will support
their positions, Kennedy is at the fulcrum.
Four current justices--Stephen Breyer, Ruth
Bader Ginsburg, David Souter and John Paul
Stevens--are reliably pro-choice. Three justices--William
Rehnquist, Antonin Scalia and Clarence Thomas--are
reliably anti-choice. If Roberts joins that
block, he will add a fourth anti-choice vote.
In a 4-4 split, Kennedy's perspective will become
critical to maintaining access to abortion
without severe restrictions, or to upholding
the right to choose altogether.
Shifted from Anti-Choice
Kennedy, like O'Connor, was considered anti-abortion
when he was appointed to the seat vacated by
Justice Lewis F. Powell Jr., a supporter of
abortion rights. But his opinions shifted over
"You look back at where O'Connor and Kennedy
were before, and they traveled tremendously
in that time. Sometimes people do move,"
Kennedy was not on the Supreme Court in 1973,
when the court ruled 7-2 in Roe vs. Wade that
a right to privacy in the constitution encompasses
a woman's decision to choose an abortion and
that states could not entirely outlaw abortion,
although restrictions in the second and third
trimester were permitted. Following that decision,
states and federal government passed restrictions
to challenge the core holdings of Roe. Many
ended up in court, and the Supreme Court has
heard approximately 30 abortion cases since
Four cases over the years demonstrate Kennedy's
When Kennedy first joined the court sixteen years
after the decision in Roe, he voted with a
minority of justices who actively urged that
Roe vs. Wade be overturned in the 1989 case
of Webster vs. Reproductive Health Services
about abortion restrictions passed in Missouri.
But three years later, Kennedy joined an opinion
that saved Roe from being overturned. Along
with O'Connor, he signed a 1992 consensus opinion
in Planned Parenthood of Pennsylvania vs. Casey
that preserved the core principles of Roe,
while permitting states to pass many more laws
restricting abortion during any trimester.
Under the Casey formulation, states could pass
restrictions so long as they did not create
an "undue burden" for women or endanger
their lives or health. Parental notification,
waiting periods and required warning statements
intended to discourage abortion were all allowed.
But the government was not permitted to force
married women to notify their husbands of an
abortion, which was seen as excessively burdensome.
As a result of the Casey decision, legislatures
passed hundreds of restrictions on abortion.
Split with O'Connor
In the review of one such restriction in 2000,
Kennedy split with O'Connor. She was in the
majority that rejected a Nebraska restriction
on certain abortion practices after the 12th
week. The case, known as Stenberg v. Carhart
challenged a ban on what opponents of all abortions
call "partial-birth abortion." In
her opinion, O'Connor wrote that any abortion
restriction must provide exceptions to protect
a woman's health.
Kennedy disagreed, and wrote a biting dissent.
He said that states should be free to outlaw
procedures that they find morally repugnant.
He specifically rejected the notion that the
law must have a health exception, which he
said would mean substituting the decision of
a single doctor for a woman over the judgment
of the state.
Reproductive rights advocates saw the opinion
as a retreat.
"Kennedy's dissent in Carhart showed that
he believes you can have laws that place a
burden on women's health," said Nancy
Northup, president of the New York-based Center
for Reproductive Rights. "The logic of
his reasoning would have enabled that law to
stand, and allow many other limitations,"
she said. Immediately after the decision, the
Center for Reproductive Rights wrote that Kennedy's
dissent would "invigorate the anti-choice
Then, in 2003, Kennedy went out of his way to
express support for the core pro-choice principles
in Roe vs. Wade. The case, Lawrence vs. Texas,
had nothing to do with abortion, but with an
anti-gay sodomy law in Texas. In writing the
majority opinion striking down the sodomy law,
Kennedy spoke approvingly of the right of privacy
"Roe recognized the right of a woman to
make certain fundamental decisions affecting
her destiny," he wrote. That "protection
of liberty" is "of fundamental significance
in defining the rights of the person,"
"Lawrence is a striking decision and can
leave you with hope that Kennedy will be sensitive
to arguments about the right of privacy and
laws that have a relationship to people's real
lives," said Melling.
Susan Low Bloch, a constitutional expert at Georgetown
Law Center in Washington, D.C., sees Kennedy
as unwilling to overturn Roe, but willing to
allot the government a right to regulate abortion.
"I think he's consistent," she said.
Slew of Test Cases
But just how far governments can go in passing
new restrictions on abortion is exactly what
the high court will be called upon to decide.
"There will be a whole slew of test cases
heading to the court that will try to tighten
the noose around women," said Northup.
Already scheduled for fall 2005 is a case from
New Hampshire, Ayotte vs. Planned Parenthood
of Northern New England, in which the court
will review whether states must include an
exception for a woman's health in an abortion
restriction, in this case, a parental notification
law. Also to be reviewed is the basis upon
which women's advocates may challenge anti-choice
laws, an important issue for keeping open the
courthouse doors when burdensome restrictions
How Justice Kennedy will view these issues could
be the deciding factor. "He is about as
pivotal as O'Connor was on abortion,"
Cynthia L. Cooper is an independent journalist
in New York with a background as a lawyer and
writes frequently about justice and reproductive
For more information:
Reproductive Freedom Project-- - American Civil
Liberties Union: - http://www.aclu.org/ReproductiveRights/ReproductiveRightsMain.cfm
Center for Reproductive Rights: - http://www.reproductiverights.org
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