Abortion Post-O’Connor: A Primer

As many of you know, Sandra Day O’Connor joined with Souter and Kennedy to fashion a compromise that upheld the core holding of Roe v. Wade in Planned Parenthood v. Casey. Casey’s standard for abortion regulations was whether the regulation represented an “undue burden” on a woman’s right to choose an abortion. In theory, the standard could have some teeth, but the Court has applied it to permit a significant amount of regulation, including parental consent, parental notification, waiting periods, and consent forms. (The Court did strike down spousal notification laws under the standard; a cynic might note that this is the one type of regulation that would affect O’Connor and a poor woman equally.) Before O’Connor resigned, 6 justices on the court agreed with Casey.

iocaste warns in comments below that we should not be to complacent, and others agree. The biggest reason for worry is Justice Kennedy’s dissenting opinion in Stenberg v. Carhart, which struck down a Nebraska statute banning D&X abortions. iocaste is not alone in reading Kennedy’s opinion as having some second thoughts about his previous vote. (“Ignoring substantial medical and ethical opinion, the Court substitutes its own judgment for the judgment of Nebraska and some 30 other States and sweeps the law away. The Court’s holding stems from misunderstanding the record, misinterpretation of Casey, outright refusal to respect the law of a State, and statutory construction in conflict with settled rules. The decision nullifies a law expressing the will of the people of Nebraska that medical procedures must be governed by moral principles having their foundation in the intrinsic value of human life, including life of the unborn.”) Obviously, if one reads Kennedy’s opinion in this way, then O’Connor’s replacement may bury Roe.

I don’t want to encourage anyone to be complacent, but in all candor I don’t think this reading is right. I’m inclined to take Kennedy’s claim that he believes Casey was correctly decided but misapplied in Carhart at face value. I don’t think that Kennedy will be the fifth vote to overturn Roe. Kennedy’s opinion in Lawrence–which not only overturned Bowers but did so more bluntly than is typical in a Supreme Court opinion (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent”)–does not suggest any doubts about the general line of reasoning in Casey. I very strongly doubt that he’s suddenly become less willing to keep Roe than he was in 1992.

Having said that, this is not to say that O’Connor’s replacement doesn’t matter for abortion right–far from it. First of all, it means that the “partial birth abortion” ban passed by Congress will almost certainly be upheld, something that has all kinds of potential for mischief. It also means that the chances of abortion regulation meeting the “undue burden” test has become greater. And, of course, even if the effect of replacing O’Connor is to make the vote for upholding Casey 5-4 rather than 6-3, that’s obviously not trivial. John Paul Stevens is 85. Ruth Bader Ginsburg is 72 and has had cancer. As today’s announcement reminds us, Supreme Court resignations are unpredictable; we could easily see a dam burst, as happened in the 30s, and we don’t know who will be in the White House in 2008. So, no matter what Kennedy’s current views are, O’Connor’s resignation and replacement matter a great deal for reproductive freedom.

…MJD brings up another point in the comments below. I do think that overturning Roe would not, on balance, be good for the Republican Party. My guess, though, is that this doesn’t really matter to Bush. If he’s willing to make social security privitization the domestic centerpiece of his second term, he’s certainly going to be willing to appoint an anti-Roe justice to replace O’Connor. Everything about the lead-up suggests that Bush wants the most conservative justice he can get through the Senate.