Chris Gacek of the Family Research Council points out that both sides may have misunderstood Justice Kennedy’s stance on abortion:
Many well-informed observers believe that Kennedy was set to overturn Roe v. Wade in 1992 in the case of Planned Parenthood v. Casey. At some point while the decision was being written, he changed sides and joined Justices Sandra Day O’Connor and David Souter in their decisive plurality opinion that affirmed Roe while emphasizing each state’s “legitimate and substantial interest in preserving and promoting fetal life.”
With the 1993 retirement of Roe opponent Justice Byron White and his replacement by pro-Roe Justice Ruth Bader Ginsburg, Kennedy was no longer the “fifth” vote in abortion cases — that role fell to O’Connor. When O’Connor retired in 2006 and was replaced by Justice Samuel Alito, Kennedy again became the deciding vote on abortion.
Carhart reveals that Kennedy’s interpretation of Casey’s possible limitations may have real teeth. Whereas O’Connor would overturn abortion regulations for virtually any reason, Kennedy seems poised to enforce Casey’s more restrictive language. Three major features of his abortion jurisprudence are discernible.
First, abortions performed before viability will receive high-level constitutional protection with no substantial interference permitted. Second, after viability, the state’s interest in preserving and promoting fetal life may allow substantial restrictions. Third, abortion is not benign and its capacity to harm women psychologically is undeniable.
Kennedy’s view of abortion can be summarized as follows: Abortion is a regrettable but necessary evil that will be protected within well-defined boundaries. Even though Kennedy will protect most abortions (i.e., those performed before viability), he clearly regards the procedure as destructive to both child and mother.
This policy, if Gacek’s analysis is correct, could lead to a final compromise on abortion that most people could live with. I think most people are for a compromise that would limit abortion to early in pregnancy. (I, of course, believe abortion is murder no matter when it occurs, but I know many pro-lifers could grudgingly accept such a compromise in the legal realm while continuing to work to change the hearts of people so that abortion, while legal, would be extremely rare. I’d prefer to see it be both rare and illegal, though. A legal structure that condones the murder of the innocent is inherently unjust.)
Could Kennedy be trying to lead us to a position on abortion other than all-or-nothing? It would help tone down the rhetorical excesses of our political culture and could only be a good thing for our country.