The Retirement of Justice Kennedy and the Future of Reproductive Rights.
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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).
Having thus failed in its strategy to overturn Roe in the Supreme Court, the anti-abortion movement turned its focus to the political branches, spending the next 15 years successfully getting Congress and a majority of the states to pass laws criminalizing a procedure they labeled, in a brilliant public relations strategy, as “partial birth abortion.” This was hard-fought, and Justice Kennedy was at the center of the debate. He dissented in an opinion that found state laws on this subject unconstitutional for vagueness in describing the prohibited procedure, and failure to provide an exception for the health of the woman.
Bill Clinton twice vetoed federal partial birth abortion laws because they had no health of the woman exception. President George W. Bush, however, signed such a law. By the time it got to the Supreme Court, O’Connor had been replaced by Justice Samuel Alito, who provided the fifth vote to overrule the prior decision and uphold the federal law. Justice Kennedy wrote the majority opinion, finding that the procedure was offensive to Congress, and outlawing it did not affect the woman’s rights because alternative means could be employed by the physician. He suggested that physicians kill the fetus by lethal injection just prior to delivery. He also opined that women might come to regret their decisions. (Gonzales v. Carhart, 2007). Justice Ruth Bader Ginsberg, the only woman on the court at the time, was outraged at the court’s approval of a law that was based on the belief that men must protect women by restricting their choices, a “way of thinking that reflects ancient notions about women’s place in the family and under the Constitution—ideas that have long since been discredited.” She also added, in words that take on added meaning today: “The Court’s hostility to the right Roe and Casey secured is not concealed”: in Justice Kennedy’s decision, physicians are referred to as “abortion doctors” and a fetus as an “unborn child” and “baby.”
Two years ago, in Whole Woman’s Health v. Hellerstedt, the court, in a 5–3 opinion, struck down a Texas TRAP law (targeted regulation of abortion providers). TRAP laws represent a newer anti-abortion strategy at the state level to decrease abortions by decreasing the number of abortion providers. The health providers argued that the rules provided no health or safety benefit to patients. The court agreed, concluding that the requirements would force the closure of reproductive health clinics that could not meet them, thereby creating an “undue burden” on women’s health by delaying and denying access to care. Justice Scalia’s seat was empty, and Kennedy joined the majority (upholding Casey and Roe). With Neil Gorsuch now in Scalia’s seat, and Kennedy’s seat empty, Whole Women’ Health hangs in a 4–4 balance.
Kennedy does get some credit for “saving” Roe in 1992, and for following Casey in 2016. But his hostility to abortion, as evidenced in Carhart, makes his legacy on reproductive rights distinctly mixed. Where does his retirement leave Roe? Because so many critical decisions are 5–4, it obviously matters who the next Supreme Court Justice is. But what should matter even more is deciding what kind of a country Americans want to live in. Is it really possible that we want to return to a pre-Roe era in which women’s reproductive decisions are imposed by male judges, legislatures, and spouses? A consistent 60 percent to 70 percent of Americans over the past two decades have told pollsters that they oppose overturning Roe v. Wade, and there is no evidence of any but the tiniest public support for going backward on women’s rights, certainly not among women.
Replacement of Kennedy with an even more conservative justice will make Chief Justice Roberts the new “swing” vote on the court—and he would have to decide whether the court becomes just another partisan branch of government with no more public support than the Congress or the president, or whether the court will at least attempt to follow its precedents and the Constitution in remaking America.
What can the public do to prevent a Handmaid’s Tale-like future? It will require that we take the danger much more seriously—that we reclaim “life” independent from government control as our guiding light, with a focus on the lives and health of women and children, and fight hard on all fronts: the US Senate, the House, state legislatures, and massive organizing and public marches and demonstrations. As the #MeToo movement helps illustrate, women’s reproductive and health rights were at risk long before Kennedy retired. Nonetheless, his retirement is an opportunity to unite and fight harder for them.
George J. Annas is the William Fairfield Warren Professor of Health Law, Ethics & Human Rights and director of the Center for Health Law, Ethics and Human Rights.