As President George W. Bush heads into the third year of his administration bolstered by a new Republican majority in the U.S. Senate, pro-life activists have high hopes that he will have the opportunity to appoint a pro-life majority to the U.S. Supreme Court. Yet many high-court watchers--including some of the justices themselves--know that it will not be so easy to undo the epoch-making decision of the Jan. 22, 1973, decree in Roe v. Wade that unborn children did not qualify as "persons" enjoying the right to life guaranteed by the 14th Amendment.
This month, Roe v. Wade reaches its 30th anniversary. But few expected the decision to remain intact so long. Over a decade ago, as Planned Parenthood v. Casey--the landmark case about the restrictions in the Pennsylvania Abortion Control Act--was wending its way through the federal court system, analysts were confident the court would reverse Roe. Hadn't Justice David Souter voted in Rust v. Sullivan to uphold restrictions on use of federal money for abortion counseling? Hadn't Justice Sandra Day O'Connor once written in a dissent that Roe was "on a collision course itself"? And Kennedy had a pro-life reputation. The overruling of Roe looked like it was in the bag; a 7-to-2 ruling (the same margin as in Roe itself) did not seem out of the question.
Instead, pro-life court-watchers who snapped up the first copies of the Supreme Court's opinion in Casey in June 1992 saw an amazing thing: Most of the restrictions in the Pennsylvania law were upheld, but Roe was "reaffirmed" in an unusual "joint opinion" by those three Republican-appointed "centrists" --Souter, O'Connor and Kennedy. Henceforth, abortion restrictions would be struck down only if they created an "undue burden"--a term that the court barely even tried to define. Justice Harry Blackmun, author of Roe, was in dissent, but so were Roe opponents Chief Justice William Rehnquist and Justices Byron White, Antonin Scalia and Clarence Thomas. Blackmun was upset that the restrictions were upheld; Rehnquist and his dissenters because Roe was reaffirmed. (Justice White, an anti-Roe Democrat appointed by President Kennedy, resigned in 1993; President Bill Clinton replaced him with pro-Roe Justice Ruth Ginsburg.)
For several years after Casey, the court appeared to avoid the abortion issue. But the abstention ended in 2000 with Stenberg v. Carhart, when the court struck down Nebraska's partial-birth-abortion statute. Pro-life observers were shocked at how icily the court brushed aside the horrifying details of the partial-birth-abortion procedure, and reasoned that because the statute might deter more abortions than merely partial-birth ones, it had to be struck down even before taking effect.
Also surprised was Justice Kennedy, whose role in modern abortion jurisprudence is remarkable. At the time Casey was handed down, there had been rumors (nothing on the record, naturally) that Kennedy had originally voted with the Rehnquist bloc to overrule Roe but changed his mind. (According to close readers Of Supreme Court tea leaves, there is language in Rehnquist's Casey dissent that suggests it initially was drafted as a majority opinion.)
In Stenberg, Kennedy was shocked, shocked, to discover that the "undue-burden" compromise that he had so earnestly helped craft in Casey did not allow states to ban such a grues6me procedure as partial-birth abortion. He dissented angrily, giving horrific details of the procedure in question and intimating that he felt betrayed by the justices (O'Connor and Souter) who coauthored the Casey "joint opinion" with him.
In a separate dissent clearly aimed more at Kennedy than at the majority, Scalia wrote: "There is no cause for anyone who believes in Casey to feel betrayed by this outcome. It has been arrived at by precisely the process Casey promised--a democratic vote by nine lawyers. …