Category: Abortion
U.S. Conservatives Guide Amy Hess argues that it probably isn't, and takes specific aim at the argument used by some supporters, which is that Justice Kennedy might abruptly reverse 14 years of his own rulings and stand by the ban:
Anthony Kennedy's vote will be the kicker, and while his voting record shows he's willing to support limitations on abortion rights, I'm inclined to believe he'll vote S.D.'s law down.
In Stenberg v. Carhart (2000), the Supreme Court voted 5-4 to strike down Nebraska's partial-birth abortion ban. In that case, Anthony Kennedy voted to uphold the ban, even in the absence of a health exception. In fact, he called Sandra Day O'Connor's vote against the ban a "betrayal". However, he did not argue that there should be no right to abortion at all.
A few years earlier, in Planned Parenthood v. Casey (1992), Kennedy was the tie-breaker for a 5-4 majority against a Pennsylvania law that required spousal notification. The majority made the argument that it placed an "undue burden" on a woman to notify her husband before getting an abortion. In conference, Kennedy had originally voted with Rehnquist, Scalia, Thomas, and Byron White in voting to uphold the law, but changed his mind when it came down to it.
Kennedy is not a stalwart defender of abortion rights, but he's shown little inclination to actually overturn Roe v. Wade.
I concur. Prior to the death of Chief Justice Rehnquist and the retirement of Justice O'Connor, the vote would have been 6-3 in favor of Roe, with William Rehnquist (who dissented in the original 1973 case), Antonin Scalia, and Clarence Thomas dissenting. So even if we assume that both Chief Justice Roberts and Justice Alito are in favor of overturning Roe, the ruling would still be 5-4. And if either of the new candidates upholds Roe (and there are already indications that Alito may be more of a freethinker than anyone had planned), the margin stands at 6-3--exactly where it did at the end of the Clinton administration.
The current pro-life strategy of promoting abstinence education and more tightly regulating abortion had settled into a highly effective groove more consistent with public opinion--which tends to be pro-choice, but with reservations. By making the debate all about a full-scale ban, proponents of the South Dakota and Mississippi bills could literally set the pro-life movement back 30 years. The current dissent we are witnessing from pro-lifers like Amy represents the movement's best hope of gaining its bearings and refocusing on areas in which it can make tangible progress.
U.S. Conservatives Guide Amy Hess argues that it probably isn't, and takes specific aim at the argument used by some supporters, which is that Justice Kennedy might abruptly reverse 14 years of his own rulings and stand by the ban:
Anthony Kennedy's vote will be the kicker, and while his voting record shows he's willing to support limitations on abortion rights, I'm inclined to believe he'll vote S.D.'s law down.
In Stenberg v. Carhart (2000), the Supreme Court voted 5-4 to strike down Nebraska's partial-birth abortion ban. In that case, Anthony Kennedy voted to uphold the ban, even in the absence of a health exception. In fact, he called Sandra Day O'Connor's vote against the ban a "betrayal". However, he did not argue that there should be no right to abortion at all.
A few years earlier, in Planned Parenthood v. Casey (1992), Kennedy was the tie-breaker for a 5-4 majority against a Pennsylvania law that required spousal notification. The majority made the argument that it placed an "undue burden" on a woman to notify her husband before getting an abortion. In conference, Kennedy had originally voted with Rehnquist, Scalia, Thomas, and Byron White in voting to uphold the law, but changed his mind when it came down to it.
Kennedy is not a stalwart defender of abortion rights, but he's shown little inclination to actually overturn Roe v. Wade.
I concur. Prior to the death of Chief Justice Rehnquist and the retirement of Justice O'Connor, the vote would have been 6-3 in favor of Roe, with William Rehnquist (who dissented in the original 1973 case), Antonin Scalia, and Clarence Thomas dissenting. So even if we assume that both Chief Justice Roberts and Justice Alito are in favor of overturning Roe, the ruling would still be 5-4. And if either of the new candidates upholds Roe (and there are already indications that Alito may be more of a freethinker than anyone had planned), the margin stands at 6-3--exactly where it did at the end of the Clinton administration.
The current pro-life strategy of promoting abstinence education and more tightly regulating abortion had settled into a highly effective groove more consistent with public opinion--which tends to be pro-choice, but with reservations. By making the debate all about a full-scale ban, proponents of the South Dakota and Mississippi bills could literally set the pro-life movement back 30 years. The current dissent we are witnessing from pro-lifers like Amy represents the movement's best hope of gaining its bearings and refocusing on areas in which it can make tangible progress.
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