Anthony Kennedy on Abortion Supreme Court Justice (nominated by Pres. Reagan 1988)

Disallow obstacles to medical services for abortion

Oppoents argued that it was identical to a Texas law the Supreme Court struck down in 2016. In that ruling, joined by Justice Kennedy, the court said Texas imposed an obstacle on women seeking access to abortion services without providing them any medical benefits. In the case called Whole Women's Health, the Supreme Court said requiring abortion doctors to have hospital admitting privileges was medically unnecessary, given that only a tiny fraction of abortions in the first trimester require hospitalization. It was the most important abortion ruling in 25 years and blocked similar restrictions in AL, MS, OK, TN, and WI.

Our obligation is to define liberty, not mandate moral code

Kennedy's opinion insulted RBG to her core. It undermined the work she had done to force the law to recognize women as fully and equally capable of charting their own destinies. In her dissent RBG reminded Kennedy that his decisions on abortion and gay rights had claimed that "our obligation is to define the liberty of all, not to mandate our own moral code."

Roe ruling definitively resolved abortion issue

With these words, it became clear that, in the view of these three self-perceived moderate justices, the biggest error in the first two decades after "Roe" was the decision by the anti-abortion side of the national debate to continue speaking out and fighting the issue.

Liberty to define one's own concept of mystery of human life

Legal and social conservatives soon came to refer to these words as the "Mystery Passage." The opinion was particularly galling because it was composed by 3 Republican justices--Sandra Day O'Connor, Anthony Kennedy, and David Souter--who had now provided the decisive swing votes to uphold Roe. These three clearly saw themselves as reasonable centrists, underlining the transformation of the global left after the 1960s from a mainly economic to a mainly social movement. It also makes clear that moral relativism and open-ended human freedom MUST become far and away the highest political good.

Parental notification is lower priority than maternal health

OnTheIssues explanation: The court did not rule against "parental notification" in general; in other words, states can decide if and when a minor girl's parents must be notified. But the court imposed restrictions: if the minor girl's life is in danger, her right to an abortion overrules the state's requirement for parental notification. Justices in the majority agree that the right to an abortion for maternal health is the higher priority (a pro-choice stance); justices in the minority say that parental notification has the higher priority (a pro-life stance).

Opinions: O`Connor wrote majority opinion; all 8 other justices concurred.

First Amendment protects leafleting at abortion center door

Kennedy has fashioned himself as a champion of First Amendment freedoms. For him, the Colorado statute--making it a crime to "knowingly approach another person for the purpose of passing a leaflet or engaging in oral protest"--was manifestly unconstitutional. The majority, in contrast, emphasized that the statute was narrow and confined, leaving open ample channels of communication.

Kennedy was outraged. "To say that one citizen can approach another to ask the time or the weather, but not to initiate discussion on one of the most basic moral and political issues in all of contemporary discourse, is an astonishing view of the First Amendment."

No partial-birth abortion; yes parental notification

Justice Kennedy was especially dismayed. The decision departed from the "common law" of the Constitution. Specifically, Kennedy viewed the decision as inconsistent with the carefully wrought compromise opinion in Planned Parenthood v Casey, the pivotal 1992 case reaffirming the Court's landmark decision in Roe v Wade but permitting the states to impose regulations on the procedure, such as parental notification.

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

"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.

Constitutional analysis of Roe: abortion is a right

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.

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

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:

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: