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Anthony Kennedy on Abortion

Supreme Court Justice (nominated by Pres. Reagan 1988)


Roe ruling definitively resolved abortion issue

The "Casey" plurality stated: "Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the story of intensely divisive controversy reflected in "Roe" and those rare comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court's interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution."

With these words, it became clear that, in the view of these three self-perceived moderate justices, the biggest error in the first two decades after "Roe" was the decision by the anti-abortion side of the national debate to continue speaking out and fighting the issue.

Source: The Case for Polarized Politics, by Jeff Bell, p.156 , Mar 6, 2012

Liberty to define one's own concept of mystery of human life

Planned Parenthood v Casey, the Supreme Court's 5-4 decision in June 1992 upholding the right to abortion [said]: "At the heart of liberty is the right to define one's own concept of existence, of the universe, and of the mystery of human life." From the founders' belief in "created equal" [by God], this language travels to the furthest opposite pole of individual self-definition, verging on self-creation.

Legal and social conservatives soon came to refer to these words as the "Mystery Passage." The opinion was particularly galling because it was composed by 3 Republican justices--Sandra Day O'Connor, Anthony Kennedy, and David Souter--who had now provided the decisive swing votes to uphold Roe. These three clearly saw themselves as reasonable centrists, underlining the transformation of the global left after the 1960s from a mainly economic to a mainly social movement. It also makes clear that moral relativism and open-ended human freedom MUST become far and away the highest political good.

Source: The Case for Polarized Politics, by Jeff Bell, p.154-5 , Mar 6, 2012

First Amendment protects leafleting at abortion center door

In 2000, Kennedy railed against the majority opinion in an abortion-related free-speech case (Hill v Colorado). He lamented as "profoundly disappointing" the Court's rejection of pro-life activists' challenge to a Colorado statute limiting their ability to engage in leafleting and sidewalk counseling outside abortion clinics.

Kennedy has fashioned himself as a champion of First Amendment freedoms. For him, the Colorado statute--making it a crime to "knowingly approach another person for the purpose of passing a leaflet or engaging in oral protest"--was manifestly unconstitutional. The majority, in contrast, emphasized that the statute was narrow and confined, leaving open ample channels of communication.

Kennedy was outraged. "To say that one citizen can approach another to ask the time or the weather, but not to initiate discussion on one of the most basic moral and political issues in all of contemporary discourse, is an astonishing view of the First Amendment."

Source: First Among Equals, by Kenneth Starr, p. 29-30 , Oct 10, 2002

No partial-birth abortion; yes parental notification

On several large issues (with federalism a notable exception), Justice O'Connor and Justice Stephen Breyer were solidly together. Their growing judicial kinship was evidenced most proactively on partial-birth abortion, the most controversial social-issues case of recent years. Along with 30 other states, Nebraska had outlawed this particularly grisly abortion method. [In 2000], the Court still overturned Nebraska's ban. The states were to be severely limited in their regulation of specific medical procedures used in the abortion context.

Justice Kennedy was especially dismayed. The decision departed from the "common law" of the Constitution. Specifically, Kennedy viewed the decision as inconsistent with the carefully wrought compromise opinion in Planned Parenthood v Casey, the pivotal 1992 case reaffirming the Court's landmark decision in Roe v Wade but permitting the states to impose regulations on the procedure, such as parental notification.

Source: First Among Equals, by Kenneth Starr, p. 31&41 , Oct 10, 2002

By rule of stare decisis, we uphold Roe v. Wade

Following a series of cases restricting Roe, the Supreme Court reaffirmed Roe's underlying validity. The Court gave weight to the fact that a generation of women had come of age relying on the availability of reproductive choice. Justices O'Connor, Kennedy, and Souter delivered the opinion of the Court:

"After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be reaffirmed. Roe's essential holding has three parts:

  1. The right of the woman to choose to have an abortion before viability, without undue interference.
  2. The State's power to restrict abortions after fetal viability, if the law contains exceptions for the woman's life or health.
  3. The State's legitimate interests in protecting the health of the woman and the life of the fetus.
"These principles do not contradict one another, and we adhere to each."
Source: A Patriot's Handbook, by Caroline Kennedy, p.275 , Jun 29, 1992

Constitutional analysis of Roe: abortion is a right

It is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.

That brings us to the criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to a woman's liberty to determine whether to carry her pregnancy to full term.

Source: A Patriot's Handbook, by Caroline Kennedy, p.279 , Jun 29, 1992

Uphold Roe v. Wade: woman's right to choose.

Justice Kennedy wrote the Court's decision on PLANNED PARENTHOOD v. CASEY on Jun 29, 1992:

    At issue are five provisions of the Pennsylvania Abortion Control Act of 1982:
  1. requiring a 24-hour “informed consent” waiting period before the abortion is performed;
  2. mandating the consent of one parent for a minor to obtain an abortion, with a judicial bypass procedure;
  3. requiring notification of the husband;
  4. defining a “medical emergency” that will excuse compliance with the foregoing requirements;
  5. imposing reporting requirements on facilities providing abortion services.

Held:

(Written by O’Connor, Kennedy, and Souter; joined in part by Stevens and Blackmun)
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned.
    We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts:
  1. The right of the woman to choose to have an abortion before viability.
  2. The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
  3. The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

Dissent:

(Rehnquist, joined in part by White, Scalia, and Thomas)
The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
Source: Supreme Court case 92-1 argued on Apr 22, 1992

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Other Justices on Abortion: Anthony Kennedy on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

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Sandra Day O'Connor
William Rehnquist
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Page last updated: Jul 12, 2015