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Anthony Kennedy on Abortion

Supreme Court Justice (nominated by Pres. Reagan 1988)


By rule of stare decisis, we uphold Roe v. Wade

Following a series of cases restricting Roe, the Supreme Court reaffirmed Roe's underlying validity. The Court gave weight to the fact that a generation of women had come of age relying on the availability of reproductive choice. Justices O'Connor, Kennedy, and Souter delivered the opinion of the Court:

"After considering the fundamental constitutional questions resolved by Roe, principles of institutional integrity, and the rule of stare decisis, we are led to conclude this: the essential holding of Roe v. Wade should be reaffirmed. Roe's essential holding has three parts:

  1. The right of the woman to choose to have an abortion before viability, without undue interference.
  2. The State's power to restrict abortions after fetal viability, if the law contains exceptions for the woman's life or health.
  3. The State's legitimate interests in protecting the health of the woman and the life of the fetus.
"These principles do not contradict one another, and we adhere to each."
Source: A Patriot's Handbook, by Caroline Kennedy, p.275 , Jun 29, 1992

Constitutional analysis of Roe: abortion is a right

It is a constitutional liberty of the woman to have some freedom to terminate her pregnancy. We conclude that the basic decision in Roe was based on a constitutional analysis which we cannot now repudiate. The woman's liberty is not so unlimited, however, that from the outset the State cannot show its concern for the life of the unborn, and at a later point in fetal development the State's interest in life has sufficient force so that the right of the woman to terminate the pregnancy can be restricted.

That brings us to the criticism that always inheres when the Court draws a specific rule from what in the Constitution is but a general standard. We conclude that the urgent claims of the woman to retain the ultimate control over her destiny and her body, claims implicit in the meaning of liberty, must not be extinguished for want of a line that is clear. And it falls to us to give some real substance to a woman's liberty to determine whether to carry her pregnancy to full term.

Source: A Patriot's Handbook, by Caroline Kennedy, p.279 , Jun 29, 1992

Uphold Roe v. Wade: woman's right to choose.

Justice Kennedy wrote the Court's decision on PLANNED PARENTHOOD v. CASEY on Jun 29, 1992:

    At issue are five provisions of the Pennsylvania Abortion Control Act of 1982:
  1. requiring a 24-hour “informed consent” waiting period before the abortion is performed;
  2. mandating the consent of one parent for a minor to obtain an abortion, with a judicial bypass procedure;
  3. requiring notification of the husband;
  4. defining a “medical emergency” that will excuse compliance with the foregoing requirements;
  5. imposing reporting requirements on facilities providing abortion services.

Held:

(Written by O’Connor, Kennedy, and Souter; joined in part by Stevens and Blackmun)
Liberty finds no refuge in a jurisprudence of doubt. Yet, 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade (1973), that definition of liberty is still questioned.
    We are led to conclude this: the essential holding of Roe v. Wade should be retained and once again reaffirmed, in three parts:
  1. The right of the woman to choose to have an abortion before viability.
  2. The State may restrict abortions after fetal viability if the law contains exceptions for pregnancies which endanger the woman’s health.
  3. The State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

Dissent:

(Rehnquist, joined in part by White, Scalia, and Thomas)
The joint opinion, following its newly minted variation on stare decisis, retains the outer shell of Roe v. Wade, but beats a wholesale retreat from the substance of that case. We believe that Roe was wrongly decided, and that it can and should be overruled consistently with our traditional approach to stare decisis in constitutional cases. We would adopt the approach of the plurality in Webster v. Reproductive Health Services (1989), and uphold the challenged provisions of the Pennsylvania statute in their entirety.
Source: Supreme Court case 92-1 argued on Apr 22, 1992

Other Justices on Abortion: Anthony Kennedy on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Jul 11, 2013