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Justice William J. Brennan Jr. liked to remind his clerks of the power of just five votes in the U.S. Supreme Court. Justice Anthony M. Kennedy last week reminded his colleagues of the fragility of that magic five. It wasn’t exactly a threat, but to anyone in the courtroom on June 28, Kennedy’s reading of his dissent in Hill v. Colorado, No. 98-1856 — a First Amendment abortion-picketing case — sounded like both a lament and a warning that the crucial support that he gave eight years ago to maintain a woman’s constitutional right to have an abortion might not exist in the future. Back then, in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), Kennedy, along with justices Sandra Day O’Connor and David H. Souter, crafted a stunning reaffirmance of a woman’s constitutional right to choose abortion. But the 5-4 decision also downgraded that right from one requiring the Constitution’s most searching inquiry into state restrictions of pre-viability abortions to whether restrictions posed an “undue burden” on the right to choose. The Casey ruling also extended a state’s interest in promoting potential life through its laws and regulations throughout the pregnancy, not just after viability. The style as well as the substance of the ruling was dramatic in that the majority opinion was written by all three justices. But on June 28, a 5-4 majority did not need Kennedy to strike down a Nebraska law that banned a particular method of abortion used after 16 weeks of pregnancy. In his dissent to that ruling ( Stenberg v. Carhart), as in Hill, Kennedy charged that the finely balanced agreement struck in Casey had been altered. Was the bargain broken? Did Kennedy move to the right on abortion? Did the majority move to the left? If Casey were before the court today, would a majority exist to uphold Roe v. Wade — or to reverse it? Definitive answers to those questions don’t exist. But regardless of their position on the abortion issue, scholars and abortion litigators agree, the high court’s abortion jurisprudence is once again on the move. “Within the Nebraska decision are the seeds of a substantial shift in the terrain of the abortion right in the future,” says Roger K. Evans, of Planned Parenthood Federation of America, which opposed the state ban in Stenberg v. Carhart, No. 99-830. A NEW MAJORITY In Stenberg, the high court reviewed a ruling by the U.S. Court of Appeals for the 8th Circuit that struck down Nebraska’s so-called “partial-birth” abortion ban. Such bans, approved in 30 states, have been the most widely successful recent attempt to regulate abortion. The Nebraska law, enacted in 1997, defined a partial-birth abortion as a procedure in which someone “performing the abortion partially delivers vaginally a living unborn child before killing the child and completing the delivery.” These partial-birth abortion bans apply to pre-viability abortions — in which the fetus is unable to live outside the womb — as well as to post-viability abortions. Nebraska, like most states, already prohibits post-viability abortions, except when needed to preserve the life or health of the mother. But the state’s partial-birth ban, like most of these bans, contains only a limited exception to save the life of the mother. Although its statute did not explicitly refer to the method by name, Nebraska argued that partial-birth abortions are performed by the intact dilation and extraction method, or D&X. The Stenberg majority, led by Justice Stephen G. Breyer, had two fundamental problems with the Nebraska law. First, although D&X is an infrequently used abortion method, the law contained no exception for its use when necessary to protect the health of the mother. “But where substantial medical authority supports the proposition that banning a particular abortion procedure could endanger women’s health, Casey requires the statute to include a health exception if the procedure is ‘necessary, in appropriate medical judgment, for the preservation of the life or health of the mother,’ ” wrote Breyer. The second fatal flaw, the majority held, was that the law’s plain language swept too broadly and covered not just D&X abortions, but also the most common method of second-trimester abortions, dilation and evacuation, or D&E. That sweep placed an undue burden on a woman’s right to make an abortion decision, according to the majority. The Stenberg ruling, in the view of the majority — justices Breyer, John Paul Stevens, Sandra Day O’Connor, David H. Souter and Ruth Bader Ginsburg — was a straightforward application of the 1992 Casey decision. A ‘CASEY’ SCHISM Not so to Kennedy. In his dissent, Kennedy said that Casey‘s reaffirmation of Roe also recognized that states’ interests in promoting potential life had previously been given short shrift; after Casey, states would play a critical and legitimate role in legislating on abortion. And Nebraska’s determination that there was a “consequential moral difference” between the D&E and D&X procedures, he wrote, was a decision that it was entitled to make. The high court’s ruling that same day in Hill also struck “at the heart of the reasoned, careful balance I had believed” was the basis for Casey, wrote Kennedy, dissenting in Hill. In Hill, a 6-3 majority upheld Colorado’s restrictions on protesters at abortion or other medical facilities. Casey recognized that a woman’s decision to abort a pregnancy is essentially a moral one, wrote Kennedy. Because the state can’t prohibit abortions in early term, those who oppose abortion can only use moral suasion to deter them, he explained. But the Hill ruling “tells us the moral debate is not so important after all,” he wrote. “I think what’s happening with Kennedy is he is moving to the right on this issue,” says Simon Heller, litigation director of the Center for Reproductive Law & Policy and winning counsel in Stenberg. “It may well be the decision in Hill pushed him further in that direction.” Kennedy, he says, is accepting this new and, in Heller’s view, “pernicious” state interest in morality as a basis for regulating abortion. “After all, if morality is the basis for regulating constitutional rights, we could, for example, find that Judaism’s belief in an eye-for-an-eye offends our morals and eliminates their right to practice their religion,” he explains. “I think it’s very alarming that Justice Kennedy is giving credence to that sort of state interest. It is literally inches from being willing to overturn Roe completely.” This state interest in morality actually originated in a partial-birth ban challenge in the 7th Circuit, says Evans, who was involved in that litigation. Circuit Judge Frank Easterbrook, he says, endorsed the interest after facing, as did the high court, the question of what state interest can justify a ban on a medical procedure that is safe and necessary for some women “The answer was: Since a tolerably small number of women is affected and there’s little medical risk, it could be justified on ‘moral considerations,’ ” says Evans. “ They didn’t expand on what that was. I put myself squarely in the camp of Justice Stevens and [7th Circuit Chief Judge Richard A.] Posner on this. There can’t conceivably be a state interest under the current abortion jurisprudence that would allow a state to outlaw a medical procedure which is not unsafe and clearly better for someone.” That Kennedy would lean this way is not surprising, says Professor Thomas Baker, director of the Constitutional Law Resource Center at Drake University Law School. There is an ongoing debate among the justices over the police powers of the states and whether morality or moral decisions by state legislatures are a constitutional basis for regulation, he says. “Justice Kennedy understands law to have a moral component in a way that Justice Stevens and Judge Posner reject,” he adds. Evans says he sees four votes on the high court now to accept a state interest in morality. Two justices in the Stenberg majority — justices Stevens and Ginsburg — explicitly reject it, he adds, and “noticeably silent” were the others in the majority. “I’d say the betting is the Supreme Court of 2002 or thereabouts is going to be confronted by this question, and it’s really quite scary, not just from the perspective of abortion rights,” he adds. But some question whether either Kennedy or the court is moving beyond Casey. “I don’t think you can go from his dissents in Stenberg and Hill to say that he would vote to uphold a statute that would deprive women of their ability to obtain abortions at all,” says Steven Shapiro, national legal director of the American Civil Liberties Union, which opposed the Nebraska ban. “There’s no doubt he construed Casey as providing states with more regulatory authority than the majority did. But we’re still not talking about [total] bans.” Professor Douglas Kmiec, of Pepperdine University School of Law, also doesn’t see Kennedy moving away from Casey so much as “manifesting a different view of Casey” than his partners. But he says, “ We now have two new justices who didn’t speak to abortion before — justices Breyer and Ginsburg — and they have made Justice Kennedy unnecessary.” Both sides in the debate see in Stenberg how easily the votes could change for or against future abortion regulation. Although Kennedy may be “unnecessary” now, changes in the court’s membership, likely in the next few years, will prove critical. “I think what these rulings reinforce is the notion that reproductive rights always hang on by fragile thread in this court,” says Shapiro.

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