All Eyes on Kennedy

After more than a decade of stability, the Supreme Court was overdue for a makeover. Impatient conservatives, long plotting a high-court coup to match their lower-court triumphs, had their eyes on poor old liberal Justice John Paul Stevens. Then, last July, Justice Sandra Day O'Connor announced she was stepping down. He does have His ways.

O'Connor, the swing justice on a closely divided court, had been a bee in the Federalist Society bonnet for some time, siding with the liberals on issues from affirmative action to public religious displays. With her out of the way and the more conservative Justice Anthony Kennedy taking over as “the decider,” you could just about hear alarm bells sound on the left and church bells ring out on the right.

Nowhere does the ideological balance of the Court inspire more hope and woe than among the combatants in the abortion debate, the veritable Super Bowl of the culture wars. During O'Connor's tenure as the swingstress, the Court significantly eroded abortion rights, and the idea that she was a defender of those rights is testament to just how much has been lost. Now that Kennedy holds the balance of power, we can expect to see further erosion.

Kennedy, O'Connor, and Justice David Souter together crafted the controlling abortion jurisprudence, but Kennedy's blood generally runs a shade or two redder than O'Connor's. He's not likely to overturn Roe v. Wade and its holding that the Constitution extends the right of privacy to a woman's decision to terminate her pregnancy. But he is likely to shepherd in a partial-birth abortion ban and expansion of anti-choice propaganda masquerading as informed-consent requirements. Unless Kennedy opts for a new direction, we are looking at a Court that, at least until the next vacancy, supports abortion rights in one paragraph and undermines them in the next.

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Abortion rights took heavy fire in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 decision that sustained several restrictive abortion regulations enacted by the Pennsylvania Legislature. But in rejecting by a 5-to-4 margin this invitation to overturn Roe, the Casey Court sided in a limited way with pro-choice advocates, who had good reason to think that Roe was going down. Thus does a non-total defeat of the pro-choice position come to seem like a victory.

The joint opinion in Casey, co-authored by O'Connor, Kennedy, and Souter, sustained what it called Roe's “essential” holding: Women have a right to choose abortion prior to fetal viability. At the same time, however, this triumvirate rejected Roe's stringent standard of review. Under Roe, states needed a “compelling” reason to regulate abortion and, importantly, could not impose pre-viability regulations on behalf of the interests of the fetus. The Casey Court relaxed the standard, holding that abortion regulations would be sustainable, pre-viability or otherwise, if they advanced a merely “legitimate” government interest without imposing an undue burden on a woman.

“A finding of an undue burden,” the Court explained, “is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.” Under this newly articulated standard, the Court conceded that the state's “profound interest in potential life” permits regulation of abortion throughout pregnancy. “Even in the earliest stages of pregnancy,” the Court said, “the State may enact rules and regulations designed to encourage her to know that there are philosophic and social arguments of great weight that can be brought to bear in favor of continuing the pregnancy to full term.” Under Casey, the state may not only express a preference for childbirth over abortion, it may use its authority to persuade women to forgo abortion, as long as the persuasive techniques do not create a substantial obstacle. New rules, indeed.

Adjectives matter in decoding court rulings, and in this case the adjective in the spotlight is “substantial.” On the Court's account of undue burden, abortion laws may impose costs, barriers, and other burdens without treading on constitutional rights. “[N]ot every law which makes a right more difficult to exercise is, ipso facto, an infringement of that right,” the Court said. What abortion laws may not impose are substantial costs, barriers, and other burdens.

Applying this new, relaxed standard of review and a deferential interpretation of “substantial,” Casey's authors decided the state could subject women to anti-choice propaganda (under the auspices of “informed consent”) and make them think about it for a while (i.e., 24-hour waiting periods). The Court in earlier decisions had rejected similar regulations.

To be fair, Casey did reject a spousal notification requirement, saying that such a regulation was “likely to prevent a significant number of women from obtaining an abortion.” Nevertheless, the Casey Court, anchored by O'Connor, Kennedy, and Souter, was clearly much more hostile to abortion than the Roe court. Casey virtually invited states to cook up abortion regulations and dared abortion-rights proponents to argue that the burdens were substantial.

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So, Kennedy and O'Connor agree on the standard abortion regulations must meet. They also agree that whatever costs, barriers, burdens, flaming hoops, and dark forests the Court might allow states to force women to endure, it has to remain the case that women can get pre-viability abortions.

Take, for example, South Dakota's draconian measure outlawing all abortions except those necessary to save the pregnant woman's life. The law, signed by Republican Governor Mike Rounds in March, will almost certainly face courtroom challenge, pending the outcome of an effort at repeal by ballot. Backers of this and similar measures pending in other states -- including Ohio, Oklahoma, Alabama, and Tennessee -- are obviously looking for a judicial throwdown, but should such a direct assault on Roe find its way to the current justices, they're more likely to get a judicial smackdown.

There is no reason to think that Kennedy has fundamentally changed the position he espoused in Casey. And notwithstanding the addition to the Court of Chief Justice John Roberts and Justice Samuel Alito, both of whom are likely to join Justices Antonin Scalia and Clarence Thomas in calling for Roe to be overturned, four other justices remain on the bench to Kennedy's left. The South Dakota plan would go nowhere with a Kennedy Court, the same fate it would have faced with an O'Connor court.

What of other attempts to impede access to abortion? Several states have augmented informed-consent requirements with mandated in-person counseling instead of phone counseling. Other states have gone further, insisting that the treating physician, rather than a nurse or physicians assistant, convey state-mandated information pertaining to abortion. These policies are enacted to encumber abortion. When coupled with a 24-hour waiting period and the fact that fewer and fewer physicians are willing to deal with the intimidation that comes with performing abortions, that is precisely how these mandates function.

Efforts are under way to make informed-consent provisions even more onerous. In the Georgia Senate, for example, a bill mandating that all women seeking an abortion be offered the opportunity to view an ultrasound or sonogram of the fetus has made its way out of committee. To date, no such laws have taken effect. But Michigan recently enacted a provision requiring a doctor who has taken an ultrasound of the fetus to offer the woman the option of viewing that image, and passage of more restrictive ultrasound requirements is all but inevitable.

However manipulative, conniving, or devious it may be for a state to make a woman go face to fetus before having an abortion, the jurisprudence established in Casey pretty clearly allows it. Casey endorsed the state's profound interest in protecting the potential life of the unborn and the state's authority to persuade women to forgo abortion. An ultrasound requirement is merely a logical extension of informed consent. This may be nonsense, but it's nonsense that Kennedy, like O'Connor, would accept. Ditto for in-person and physician counseling.

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There is one salient point of divergence between O'Connor and Kennedy. In the realm of so-called partial-birth abortion, the Casey trio parted company, with Kennedy signaling a more indulgent approach to state-imposed abortion restrictions.

In June 2000, the Court handed down a decision in Stenberg v. Carhart overturning Nebraska legislation that criminalized the use of a certain abortion procedure involving the partial delivery of a fetus outside a woman's uterus and into her vagina. Termed partial-birth abortion by rhetoricians on the right, the procedure was banned by Nebraska except in cases where necessary to save the woman's life. The ban did not, however, provide an exception in cases where physicians judged the procedure necessary to protect a woman's health, an exception that, conservatives argue, devolves into abortion on demand when protection of mental health is sanctioned.

The absence of a health exception led O'Connor, Souter, Stevens, Ruth Bader Ginsburg, and Stephen Breyer to declare the law inconsistent with Casey. Sampling from both Casey and Roe, the Stenberg majority recalled that “subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.” The majority reasoned that since a post-viability abortion regulation must include a health exception, so too must any abortion restriction.

In addition, Stenberg found that the statute failed to distinguish between two abortion procedures that entail partial delivery, the rarely used Dilation and Extraction procedure (D&X) and the more common Dilation and Evacuation method (D&E). Despite the Nebraska attorney general's efforts to construe the statute as applying only to D&X, the majority followed the lower courts in finding that the ban effectively applied to both procedures, thereby unduly burdening a woman's right to terminate her pregnancy.

Kennedy did not join these conclusions. Instead, in a Scalia-like rebuke, Kennedy scolded the majority for, among other things, neglecting to give proper weight to the critical state interests behind the legislation. He argued that these interests, including expressing concern for the life of the unborn, advancing the integrity of the medical profession by ensuring that the profession does not become disdainful of life, and inhibiting infanticide, permit the state to make a moral distinction between different types of abortion procedures. Accepting Nebraska's contention that the statute applies only to D&X and concluding that “there was substantial and objective medical evidence to demonstrate the State had considerable support for its conclusion that the [D&X] ban created a substantial risk to no woman's health,” Kennedy rejected the need for a specific health exception.

Especially revealing in Kennedy's dissent is how much deference he affords the state's medical determinations. Admonishing the majority, Kennedy said, “[t]he Court fails to acknowledge substantial authority allowing the State to take sides in a medical debate, even when fundamental liberty interests are at stake and even when leading members of the profession disagree with the conclusions drawn by the legislature.” In Kennedy's view, “the State is entitled to make judgments where high medical authority is in disagreement,” and in so judging, the state may reasonably regulate the practice of medicine and intrude on the individual physician's discretion.

Though Stenberg is just six years old, the court has agreed to revisit the issue next term, this time taking up the 2003 federal Partial Birth Abortion Ban Act. The law explicitly distinguishes D&X from D&E and does not include a specific health exception. It is a pretty good lock that on this go-round, with Kennedy in the middle, the D&X procedure is toast. Should the Court give its blessing to the federal ban, the change would not have a substantial impact on women's access to abortion. Estimates put the number of D&X abortions performed annually at 640 to 5,000, a tiny fraction of the estimated 1.3 million abortions performed each year. Still, the question of access to safe abortion remains, given the Stenberg majority's acceptance of the claim that D&X “may be the best or most appropriate procedure in a particular circumstance to save the life or preserve the health of the woman.” Moreover, and this is not unimportant, a reversal of Stenberg would energize anti-choice activists and would not happen were O'Connor still on the Court.

Some, including Linda Greenhouse of The New York Times, have warned that Kennedy's invective in Stenberg may foreshadow a renunciation of Casey. But harsh tone aside, Kennedy has offered little evidence to suggest that he is ready to disown Casey and, with it, Roe. His substantive disagreements with the Stenberg majority do not call into question the gist of Casey. Kennedy maintains that, as a matter of medical fact and statutory construction, the Nebraska law effectively protects both the life and health of the mother. He's not saying, and this would be a major departure, that a woman's health need not be protected. It is, rather, according to Kennedy, possible to secure women's health without a specific clause titled “Health Exception.”

On the other hand, Kennedy's Stenberg dissent is worrisome, and not just for the debate over partial-birth abortion. With his advocacy of the view that states may take sides in highly disputed medical debates, Kennedy would almost certainly sanction recently passed state mandates requiring abortion providers to inform women of the alleged experience of fetal pain and the dubious link between abortion and cancer. Kennedy seems to welcome such hysterical broadening of informed-consent provisions, which have become a vehicle for putting the state's imprimatur on anti-choice propaganda.

The state of abortion rights in this country is dismal. It was dismal under O'Connor, and the best that can be said about a Kennedy reign is that, even as practical access to abortion gets tighter and tighter, we are unlikely to see the Court go for the nuclear option.

Pretty soon, however, it may be curtains. Where once the buffer between Roe and Scalia was two justices thick, it is now just one, and one of the good guys just turned 86. We've heard conservative commentator Bill Kristol say again and again that elections have consequences. Well, if Democrats lose one more, it's over.

Helena Silverstein is professor of government and law at Lafayette College. Wayne Fishman is a freelance writer.