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6-3 or 5-4?

Via Bitch. Ph.D., Scott Lemieux argues that the current makeup of the Supreme Court is 6 votes in favor of Roe v. Wade (including O'Connor) and 3 votes against - not, as some believe, 5 in favor and 4 against. If Lemieux is right, then replacing O'Connor with an anti-choice justice would leave Roe intact (for the time being); if the other scenario is correct, then swapping out O'Connor for an anti-choicer would mean the end of Roe.

Some background: the reason for believing that the 'score' is 6-3 in favor of Roe is the Court's ruling in Planned Parenthood v. Casey in 1992. The central holding of Casey, which is considered to have re-affirmed the basic principle behind the Roe v. Wade decision, was decided by a 5-4 margin. Concurring were Justices Souter, Stevens, Blackmun, O'Connor, and Kennedy; dissenting were Rehnquist, Scalia, Thomas, and White. Since 1992, two of these justices have left the court - White and Blackmun (both of whom are now dead). Blackmun's replacement was Stephen Breyer, another pro-Roe judge, but White's was Ginsburg, which replaced an anti-Roe vote with a pro-Roe one. Thus 6 judges in favor of Roe - the four still remaining who concurred on Casey plus Breyer and Ginsburg - and three against (Rehnquist, Scalia, Thomas).

So far, this seems relatively straightforward. But the fly in the ointment is Kennedy, a Reagan appointee (Ronnie's second choice after the now-forgotten Robert Bork (ha ha)). As Lemieux points out, what leads abortion rights advocates to worry that Kennedy might not be a reliable pro-Roe vote is what he had to say about the Steinberg v. Carhart case, in which the Court ruled that a Nebraska law prohibiting D&X abortions was unconstitutional. While Kennedy, in his written dissent, reiterates his support for the Casey decision, he seems to view that decision not so much as a reaffirmation of Roe but more as a substantial scaling-back of it - arguing that the majority was wrong in thinking that Casey provided a basis for their decision in Steinberg. Kennedy, joined by Rehnquist, points out that

Casey held that cases decided in the wake of Roe v. Wade ... had "given [state interests] too little acknowledgment and implementation."... The decision turned aside any contention that a person has the "right to decide whether to have an abortion without interference from the State" ... Casey is premised on the States having an important constitutional role in defining their interests in the abortion debate.

Casey indeed carves out a fairly substantial role for state interference with the practice of abortion. Other portions of Kennedy's dissent are also troubling:

States also have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus. Abortion, Casey held, has consequences beyond the woman and her fetus. The States' interests in regulating are of concomitant extension. Casey recognized that abortion is, "fraught with consequences for ... the persons who perform and assist in the procedure [and for] society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life."

A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.

It seems that, in Kennedy's opinion, if it is determined that the practice of abortion 'might' cause physicians - or 'society as a whole' - to become 'insensitive' to fetal life, then the state has the right to prohibit it. It comes as no surprise that this has caused some to doubt Kennedy's commitment to the constitutional right to abortion.

Lemieux thinks this worry is misplaced:

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.

I'm a little unclear as to what, exactly, Lemieux is arguing here. I suppose he means to say that Kennedy's opinion in Lawrence is somehow indicative of a commitment to abortion rights. But how, exactly, any conclusion about Kennedy's views regarding Casey or Roe can be drawn from his opinion on Lawrence is obscure.

Lawrence, of course, struck down a Texas anti-sodomy law. There is a real connection between this case and abortion rights; Kennedy refers to the Court's decision in Griswold v. Connecticut, which established a general right to privacy (which Kennedy supports), as "part of the background for the decision in Roe v. Wade." But Kennedy could consistently believe (a) that there is a general right to privacy; (b) that anti-sodomy laws violate this right; and (c) anti-abortion laws do not violate this right. I'm not saying that this is Kennedy's view; all I'm saying is that his opinion in Lawrence doesn't indicate anything in particular about whether or not he still supports Roe or Casey. Kennedy's endorsement of the right to privacy in Lawrence is indeed comforting, but it won't (and shouldn't) alleviate concerns about his feelings toward Roe.

Another clarification is necessary. In my opinion, Lemieux's aim is off a little bit. He thinks that Kennedy still agrees with "the general line of reasoning in Casey" and doubts that he's "suddenly become less willing to keep Roe than he was in 1992." For one thing, there wouldn't be anything particularly "sudden" about it; we're talking about a period of thirteen years. But more to the point, the issue isn't really whether Kennedy still agrees with Casey; it's what, exactly, he understands Casey to have established.

As mentioned above, Kennedy believes that Casey "turned aside any contention that a person has the 'right to decide whether to have an abortion without interference from the State' ". And the fact is, he might be right. The Casey decision affirmed three things:

(1) a recognition of a woman's right to choose to have an abortion before fetal viability and to obtain it without undue interference from the State, whose pre-viability interests are not strong enough to support an abortion prohibition or the imposition of substantial obstacles to the woman's effective right to elect the procedure; (2) a confirmation of the State's power to restrict abortions after viability, if the law contains exceptions for pregnancies endangering a woman's life or health; and (3) the principle that 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.

So the state, according to Casey, does have an interest in 'protecting' a fetus, even pre-viability; it's just that the interest isn't strong enough to justify a prohibition on abortion.

The question is: does Kennedy still believe that the state interest in fetus-protection is outweighed by a woman's right to privacy? In the Casey decision itself, Kennedy admits that a previous Court decision can be overturned if the factual assumptions on which the original decision relies turn out to be incorrect. In 1992, Kennedy believed that there was no reason to believe that the factual assumptions underpinning Roe were faulty. Does he still believe this? Or does he believe that he has seen evidence over the last thirteen years that abortion is contributing to a general "culture of death," causing the medical profession and society at large to become 'insensitive' or even 'disdainful' of life - a development that could be construed as bolstering the state's interest in protecting a pre-viability fetus to a level that would make that interest 'strong' enough to justify the prohibition of abortion?

I don't know the answers to these questions. But the line of reasoning that I've just outlined seems like a reasonably plausible extrapolation of what we know about Kennedy's evolving feelings about abortion (especially insofar as they can be gleaned from his opinion in Steinberg). This seems at least as plausible as the contention that Kennedy remains a reliable supporter of Roe v. Wade.

The "Roe is safe" line is already being pushed by Republicans who don't want the public to realize what is at stake. We cannot allow this to become part of the conventional wisdom; we need to be perfectly clear that if Bush replaces O'Connor with another Scalia or Thomas, Roe v. Wade - which 65% of the American public wants upheld - is history.

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