Supreme Court Justice Anthony M. Kennedy

(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 the years.

"You look back at where O’Connor and Kennedy were before, and they traveled tremendously in that time. Sometimes people do move," said Melling.

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 then.

Four cases over the years demonstrate Kennedy’s evolution.

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 movement."

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 on abortion.

"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," he said.

"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 are passed.

How Justice Kennedy will view these issues could be the deciding factor. "He is about as pivotal as O’Connor was on abortion," said Bloch.

Cynthia L. Cooper is an independent journalist in New York with a background as a lawyer and writes frequently about justice and reproductive rights. 

For more information:

Reproductive Freedom Project–
American Civil Liberties Union:

Center for Reproductive Rights:

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