The Retirement of Justice Kennedy and the Future of Reproductive Rights
William Fairfield Warren Distinguished Professor George Annas authors a Viewpoint piece for the School of Public Health News.
For more than 40 years, the extreme right wing of the Republican party has waged a political war to overturn Roe v. Wade. The 1973 opinion declared state laws that made abortions of pre-viable fetuses a crime unconstitutional as a violation of a pregnant woman’s fundamental “right to privacy.” Abortions could be outlawed after fetal viability, but only with a life or health of the woman exception. The opinion, written by Justice Harry Blackmun, was decided by a 7 to 2 vote, and was not particularly controversial. Nonetheless, by the time Justice Anthony Kennedy joined the court in 1988, political movements to reverse Roe (mostly by demanding that Republican presidents nominate justices who had indicated they would overturn it) were in high gear.
When the court decided Planned Parenthood v. Casey in 1992, there seemed to be seven votes to overturn Roe. But in a surprise move, Justices Kennedy, Sandra Day O’Connor, and David Souter wrote a “joint opinion” that upheld the basic holding of Roe (Justices John Paul Stevens and Blackmun supplied the additional votes needed). The Casey opinion also modified the standard of judicial review for state regulations of pre-viability abortions, ruling that instead of a “compelling state interest,” the state need only demonstrate that their regulations did not create an “undue burden” on women seeking to terminate a pregnancy. A 24-hour waiting period was found acceptable; spousal notification was not. Casey also made clear a core issue Roe obscured: The rights at issue are women’s rights—the rights of physicians to practice medicine are derivative from the rights of their patients. Similarly, the joint opinion emphasized (and it did seem necessary) that states may not impose regulations on women that treat them like children (e.g. spousal notification).