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Justice Anthony Kennedy clearly relishes his new role as the “swing vote” on the post-O’Connor Supreme Court. But on April 18, Kennedy redefined that term to his liking: not as the swing of a swinging gate, blowing in the breeze, but as someone who can swing — lead and persuade — the Court in a new direction. In so doing he has introduced wrenching and controversial new language into the abortion debate. Kennedy was the author of the Court’s controversial 5-4 majority opinion last week in Gonzales v. Carhart, marking the first time the Court has upheld a federal ban on a specific abortion procedure since it first declared a woman’s right to an abortion in Roe v. Wade in 1973. By clinging to, and expanding, his attack on the “partial birth” abortion procedure, first expressed in 2000, Kennedy seemed to be telegraphing to liberals on and off the Court: “Don’t think I can easily be swayed, especially when fundamental morality is at stake.” For Kennedy, something in the case clearly struck a chord, one that compelled him to write — in almost melodramatic terms — an opinion that women’s groups attacked as paternalistic. The abortion procedure at issue is so shocking and gruesome, Kennedy wrote, that when a woman has it without knowing its explicit details, she later “must struggle with grief more anguished and sorrow more profound” than in the aftermath of other procedures. The challenge to the law banning the procedure focused on the fact that it did not contain an exception that would allow doctors to use the method to protect the medical health of the woman. But Kennedy seemed more interested in — and passionate about — the mental health of the woman after the abortion is performed. As the impact of the abortion ruling continues to be debated, charting Kennedy’s path from Planned Parenthood v. Casey, the 1992 decision in which he helped rescue Roe, to last week’s decision is important to understanding where the Court goes from here. Some see Kennedy’s move as a radical departure. Janet Crepps, an attorney for the Center for Reproductive Rights, views Kennedy’s language as “a seismic shift . . . away from the health of the mother” that can only encourage states to enact informed-consent and other laws restricting abortions. But Pepperdine University School of Law professor Douglas Kmiec applauds Kennedy for displaying a “consistency of method . . . that is not fairly conceived as either conservative or liberal.” He and other analysts do not forecast major change in the wake of the decision. A SENSE OF BETRAYAL Although abortion-rights advocates may have felt stunned and abandoned by Kennedy, he wrote from a mind-set of feeling that he, too, had been betrayed on the issue by some colleagues on the Court. According to the papers of the late Justice Harry Blackmun and other accounts, Kennedy in 1992 nearly sided with the conservatives in a Casey majority opinion that would have effectively nullified Roe. But he changed his mind, flipping the majority and working with Justices Sandra Day O’Connor and David Souter to craft a joint opinion for the Court. Their writing celebrated Roe but also left room for states to enact restrictions on abortion, so long as no “undue burden” was imposed on the abortion right. Eight years later, when the Court took up the partial-birth abortion issue, Kennedy clearly felt betrayed when O’Connor and Souter invoked Casey to form a majority to strike down exactly the kind of state restriction he thought was permissible under Casey — a ban on the controversial procedure known as intact dilation and extraction. Kennedy was so upset about what he perceived as the majority’s perversion of Casey that a rift developed between him and Justice Clarence Thomas, who had apparently been assigned to write the main dissent in the 2000 case, Stenberg v. Carhart. According to Supreme Discomfort, a new biography of Thomas out this week, one Thomas law clerk tearfully confronted a Kennedy clerk, questioning why Kennedy felt the need to write a separate dissent. “In Thomas’ chambers, [Kennedy's separate dissent] was seen as pure grandstanding,” according to authors Kevin Merida and Michael Fletcher. In the dissent, Kennedy wrote that the majority opinion “ill-serves the Court, its institutional position, and the constitutional sources it seeks to invoke,” adding that “the Court’s holding contradicts Casey‘s assurance that the State’s constitutional position in the realm of promoting respect for life is more than marginal.” Kennedy’s anger over his colleagues’ betrayal in the Stenberg case has stayed with him ever since. In a 2006 interview for another new book on the Court, Supreme Conflict by Jan Crawford Greenburg, Kennedy said the Casey standard “was not followed” in Stenberg. Kennedy also seemed to have the Stenberg case in mind when, in the book, he contrasted himself with O’Connor — his predecessor as the Court’s swing vote: “I think I may adhere somewhat more closely with whatever standard I come up with,” he told Greenburg, who covers the Court for ABC News. “I mean, if I say something, I want to stick with it.” Interestingly, in the interview, Kennedy also balked at the “swing vote” designation now so often applied to him. “There’s a connotation of inconsistency, of change, but I think it’s just the opposite. I think it’s the cases that change, not the law.” A GHOST OF A CHANCE Viewed against this backdrop, it should have been no surprise that Kennedy held to his Stenberg stance in last week’s ruling. But some of his questions during oral argument in November had given abortion-rights advocates hope that Kennedy would change his mind in the interest of adhering to precedent and protecting women’s choices. Also, in the years since Stenberg, Kennedy has staked out some decidedly liberal positions in cases that also seemed to touch on fundamental moral issues. In Lawrence v. Texas in 2003, he embraced gay rights, and in Roper v. Simmons two years later, he said juveniles under 18 should not be executed. But some don’t see any inconsistency coming from a justice who has strong moral views, positions he announces grandiloquently. “It’s pure �Preacher Tony,’ ” says University of Cambridge professor David Garrow. “ The Anthony Kennedy who is telling unreflective women what’s ethically best for them here is, for better or worse, the same Anthony Kennedy who preached to us in Casey about the meaning of life and in Lawrence about the moral necessity of gay equality. There’s no doubt that he thinks he’s being absolutely consistent.” Garrow also thinks that as preachy as the decision is, it is limited in scope. He notes that Kennedy focuses only on the specific procedure at issue and holds open the possibility of a future “as-applied” challenge to the law. Kennedy also stressed that the law does not criminalize “accidental” use of the procedure. “It’s the most limited and narrowest possible upholding of the federal statute,” says Garrow. Significantly, Kennedy also does not attack the Roe holding itself. That was left to Justice Thomas, who wrote in a concurrence that Roe “has no basis in the Constitution.” Only Justice Antonin Scalia signed onto Thomas’ opinion. EMOTIONAL RESCUE As limited as Gonzales v. Carhart might be, abortion-rights advocates were alarmed by Kennedy’s invocation of a legal argument that has been advanced by abortion opponents for years but has gained little traction in Court opinions: the state’s interest in helping women avoid the psychological pain and regret they might suffer after having an abortion. “Respect for human life finds an ultimate expression in the bond of love the mother has for her child,” wrote Kennedy. “The Act recognizes this reality as well. Whether to have an abortion requires a difficult and painful moral decision. While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained. . . . Severe depression and loss of esteem can follow.” Kennedy cited a brief that offers the testimonials of more than 100 women who have suffered physical and psychological trauma after having an abortion. The brief was filed by the Justice Foundation, whose Operation Outcry project represents women who regret their abortions. “Women, the new rhetoric argues, don’t really understand what they are doing when they decide to have abortions,” says Yale Law School professor Jack Balkin, who is sharply critical of what he labels the “New Paternalism” of Kennedy’s opinion. “The new rhetoric of pro-life forces is no longer just rhetoric. It’s now part of Supreme Court doctrine,” Balkin wrote on his Balkinization blog. Dissenting Justice Ruth Bader Ginsburg was also critical of Kennedy’s language about post-abortion regrets, which she said “recalls ancient notions about women’s place in society and under the Constitution — ideas that have long since been discredited.” Ginsburg, who has spoken of her loneliness on the bench as the Court’s only woman justice, somberly read from her dissent: “Though today’s opinion does not go so far as to discard Roe or Casey, the Court, differently composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of �the rule of law’ and the �principles of stare decisis.’ “ In what could be viewed as a prayer that no more Bush appointees join the Court, Ginsburg added, “A decision of the character the Court makes today should not have staying power.” Kennedy’s redirection of the Court’s abortion jurisprudence is a milestone in a long campaign to remake the high court’s abortion law, begun by Presidents Ronald Reagan and George H.W. Bush. Even as they appointed real and purported conservatives to the Supreme Court, the Court majority still clung to the Roe precedent in Casey and other rulings. Then Clinton appointees Ginsburg and Stephen Breyer helped stave off major change on abortion for more than 11 years, during which the Court had no vacancies. But O’Connor’s departure and the death of Chief Justice William Rehnquist finally made the difference. Though the abortion views of current Chief Justice John Roberts Jr. seem to place him in the same ballpark as Rehnquist — meaning no change in votes — Samuel Alito Jr.’s arrival on the Court to replace O’Connor gave Kennedy his majority. “The replacement of moderate Justice Sandra Day O’Connor with ultraconservative Justice Samuel Alito has brought the Court to the brink of judicial disaster,” said Ralph Neas, president of the liberal People for the American Way, in a statement. The decision, he said, “will energize a crucial public conversation with presidential candidates about the importance of future Supreme Court justices.”
Tony Mauro can be contacted at [email protected].

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