Lyle Denniston, the National Constitution Center’s constitutional literacy adviser, looks at how Justice Anthony Kennedy will again play a key role in at least one major Supreme Court decision about abortion.
"A number of states have picked up on the Supreme Court’s recent willingness to allow more regulation of abortion than it had previously, particularly when those regulations are quite clearly aimed, as Texas’s is, at health and safety. Indeed, Justice [Anthony] Kennedy’s recent opinions in the partial-birth abortion cases even suggest that the Court might finally be ready to repudiate is egregiously wrong decision in Roe v. Wade."
– Excerpt from a public statement on November 13 by John C. Eastman, a law professor at Chapman University Law School in Orange, Calif., commenting on the Supreme Court vote to review the constitutionality of a 2013 Texas law imposing new restrictions on abortion clinics and doctors in the state.
WE CHECKED THE CONSTITUTION, AND…
The constitutional right that women have to end their pregnancies has remained largely unchanged since 1992, when the Supreme Court last defined the scope of that right. Then, in the case of Planned Parenthood of Southeastern Pennsylvania v. Casey, three Justices joined in a combined effort to craft a controlling opinion that reaffirmed Roe v.Wade, but not entirely. Of those three, only one remains on the court: Justice Anthony M. Kennedy.
The other two were now-retired Justices Sandra Day O’Connor and David H. Souter. In fact, Kennedy is the only remaining one of the five Justices who supported the basic outcome of that case. Two Justices remain from the four-member dissenting bloc: Antonin Scalia and Clarence Thomas. The lead dissenting opinion began with this plain statement: “We believe that Roe was wrongly decided, and that it can and should be overruled.” Of course, that view lacked the single vote that would make a majority.
It is probably true that the single vote then lacking has not yet arrived on the court, but that depends upon whether Justice Kennedy holds fast to the Casey framework after the passage of 23 years and spreading attempts by state governments to find ways to pass laws to limit abortion rights.
Here are the key parts of the Casey framework: first, a woman has a right to have an abortion up through about the 24th week of pregnancy, but states may adopt a restriction so long as it does not impose an “undue burden” on that right; second, the three-trimester division of pregnancy created in Roe, with the right diminishing from stage to stage, was cast aside because it was too “rigid,” and, third, states have authority “from the outset of pregnancy” to pass laws to protect fetal life along with the protection of women’s health.
The court was able, in 2007, to continue to apply that framework but with a very different outcome: it upheld for the first time a flat, nationwide ban on a particular form of abortion – a particularly controversial mode called “partial-birth” abortion. The majority upheld the ban partly because that method required the doctor to take a specific step to end the life of the fetus after “partial” delivery.
The lead opinion in that case (Gonzales v. Carhart) was written by Justice Kennedy. It picked up the votes of Justices Scalia and Thomas (who also wrote separately to again challenge Roe and to also criticize the Casey decision), along with the votes of Chief Justice John G. Roberts and Justice Samuel A. Alito, Jr. Of the four dissenters, only two – Justices Souter and John Paul Stevens – remained from the court that had decided the Casey case. Others in dissent were Justices Ruth Bader Ginsburg and Stephen G. Breyer.
In fact, the Gonzales decision of eight years ago was the court’s last major ruling on an attempt by legislators to cut back on the basic right. Since then, two new Justices have arrived on the court: first, Sonia Sotomayor and, second, Elena Kagan. Presumably, from their other votes on issues of constitutional rights, it is probably correct to assume they favor retaining a woman’s right to abortion.
For purposes of speculating where Justice Kennedy may now stand, there could be two perhaps conflicting interpretations of the Gonzales ruling: one, that he does remain committed, in some fundamental way, to the framework of his Casey opinion, but, two, that he can find a way to fit that framework around a quite significant restriction on the right to an abortion.
Since that decision, states have been moving along two paths to try to restrict what remains of the right as outlined in Casey. The most significant of those paths has been a move to impose bans on abortions before the twenty-fourth week, by assuming that fetal medicine is now permitting the unborn to survive if delivered earlier in pregnancy – indeed, a North Dakota law, going the furthest, would impose a ban as early as the sixth week. The second path is to adopt tighter, and more expensive, restrictions on how abortion clinics operate.
Cases are already on the court’s docket to test the constitutionality of the first of those restrictions, and the Justices may act on those in coming months. Last Friday, the court agreed to rule on the constitutionality of the second kind of legislation: in a Texas case, it will be deciding the validity of a requirement that clinics have hospital-equivalent surgery facilities, and of a requirement that doctors must have patient-admitting privileges within 30 miles of the clinic where they work.
Perhaps it is a partial hint of where Justice Kennedy may now be that he has joined with the four more liberal Justices twice – once on a 6-to-3 vote, and once on a 5-to-4 vote – to prevent some parts of that Texas law from going into effect before the case could come up for full review.
A more challenging test for him may come when the court confronts the other form of new legislation. Recalling that one part of the Casey decision was to confer additional protection on fetal life from the beginning of pregnancy, would that now be a key factor in whether cutting off abortion rights earlier would put an “undue burden” on that right This term of the court might provide an answer.
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