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NATIONAL | winter 2007

Swing Shift
Will Justice Kennedy replace Justice O’Connor in saving women’s abortion rights?

On November 8, Justice Anthony M. Kennedy leaned toward the echoing halls of the U.S. Supreme Court. A protestor had already been dragged away, but not before grabbing at Dr. Leroy Carhart, lead plaintiff in one of the two cases jointly before the court, Gonzales v. Carhart and Gonzales v. Planned Parenthood. Now Kennedy, 70, a Reagan appointee in his 19th year as associate justice, focused on Priscilla Smith, the lawyer for the Center for Reproductive Rights.

“Your argument is that there is always a constitutional right to use what the physician thinks is the safest procedure?” he queried her.

In a previous abortion-rights case almost exactly like this one, Stenberg v. Carhart in 2000, Kennedy had rejected the pro-choice argument that it should be the doctor who makes the decision of how best to proceed with an abortion. But now, the bespectacled and increasingly centrist Kennedy seemed engaged with the issue in an open-minded way.

And his vote may prove critical in the cases argued before the court just a day after the U.S. midterm elections. Named after Attorney General Alberto R. Gonzales, the cases challenge the overturn of the Partial-Birth Abortion Ban Act of 2003, which federal appeals courts ruled unconstitutional because, among other problems, it doesn’t contain an exemption to protect the health of the mother.

Justice Sandra Day O’Connor had long been the swing vote on such issues, and it was her vote that swung the tide 5-4 against the almost identical ban decided in Stenberg. When she retired, though, Bush replaced her with staunchly anti-choice Samuel Alito who, along with anti-choice Chief Justice Roberts, could tip the court against reproductive rights. That has left Kennedy—an unpredictable ally who has voted for and against abortion rights—the best and perhaps last hope.

If the abortion procedure ban is found to be constitutional, not only would it prohibit a specific late-term procedure—intact dilation and extraction (D & X)—but could possibly outlaw every abortion procedure performed after 12 weeks of pregnancy (the first trimester), including the more common dilation and evacuation (D & E) method. This could have dramatic consequences, since 143,000 American women annually have abortions during their second or third trimester. It would be particularly hard on women awaiting the results of amniocentesis, the common diagnostic tool for severe birth defects, which is usually administered during the 15th to 18th weeks of pregnancy. If the ban is judged constitutional, there may be no legal way to terminate certain pregnancies, no matter how grave the birth defect discovered.

The ban would also prevent doctors from providing a D & X procedure in certain circumstances when it’s considered the safer option, such as cases involving preeclampsia or some cancers. As Eve Gartner, lead counsel for the Planned Parenthood Federation of America, explained to the justices, “In some cases…[it] averts uterine perforation, it averts the spread of sepsis or infection; it [potentially] averts the spread of…malignant cancer throughout the woman’s body. … This Court has never recognized a state interest that was sufficient to trump the woman’s interest in her health.”

Observers expect a decision by July.