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This has been a heady week for the pro-life movement.
First, the Supreme Court handed down a favorable decision in NIFLA v. Becerra, agreeing that pro-life crisis-pregnancy centers shouldn’t have to post information about abortion.
Then, Justice Anthony Kennedy, the Court’s long-time conservative swing vote, announced his retirement.
This has opened the way to what will inevitably be an intense battle over his replacement, along with the core principles Kennedy helped to defend.
Above all, advocates and legislators seem to have one word in their minds as they prepare for this fight: Roe.
Over the past 45 years, Roe v. Wade, the 1973 Supreme Court decision that upheld a woman’s right to obtain a legal, pre-viability abortion, has become infamous—loved by pro-choice feminists, reviled by the pro-lifers who see themselves as defenders of the unborn.
At many points throughout his long career on the Court, Kennedy provided the decisive vote in cases that dealt with controversial cultural questions, including LGBT rights and religious freedom.
He has been particularly influential in abortion-related cases, in part because his views have been mixed: While he has generally voted to uphold the fundamental principles outlined in Roe, he has at times expressed a deep moral ambivalence about abortion itself.
Without him on the Court, pro-life advocates see an opportunity to secure a firmly anti-abortion majority.
Overturning Roe v. Wade is not a straightforward political maneuver achieved in a few easy steps.
But now that Kennedy has stepped aside, pro-life advocates see an opportunity to tilt the Court toward their cause—and they have a clear strategy for making it happen. “We know what we’ve got ahead of us.
It’s the fight of our lives, literally,” said Marjorie Dannenfelser, the head of the pro-life advocacy group Susan B. Anthony List. “If this is the Roe vote, then it is the most consequential battle since 1973.”
The story that has been told about Kennedy and abortion is one of indecision and persuasion.
According to a 1998 book by a former Supreme Court clerk, Edward Lazarus, Kennedy had been open, three decades ago, to casting a vote in a case that would have returned the question of abortion to the states.
But in 1992, Kennedy—a devout Roman Catholic and Ronald Reagan appointee—joined Justices David Souter and Sandra Day O’Connor in authoring Planned Parenthood v. Casey, which upheld Roe while allowing for certain regulations and limits on abortion.
Not all critics have considered the book’s account trustworthy, but its larger story about Kennedy’s posture on abortion is evident in his judicial record.
His vote was essential in Casey, but he also wrote the opinion that upheld Congress’s ban on so-called partial-birth abortions.
In 2016, he joined the Court’s liberal justices in Whole Woman’s Health v. Hellerstedt, a decision that pushed back against abortion restrictions in Texas.
But just last week, he also joined the conservative majority in NIFLA v. Becerra; in his concurring opinion, he compared California’s requirements for crisis-pregnancy centers to the free-speech restrictions imposed by authoritarian regimes.
As a result, Kennedy has not won many ardent admirers among advocates and scholars with firm positions on abortion. Continue reading
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