Commentary: Kennedy vote in play on abortion
SCOTUS
By Lyle Denniston
Justice Anthony M. Kennedy, proceeding calmly, cautiously and analytically, left the clear impression on Wednesday that his vote may be available to strike down Congress' first attempt to impose a nationwide ban on an abortion procedure -- even though the procedure at issue is one that Kennedy has suggested is morally repugnant. In two hours of argument on abortion procedures, overwhelmingly dominated by analysis of medical procedures and barely touching basic separation-of-powers questions, Kennedy dropped suggestive hints one after the other that he is troubled by what Congress attempted in the Partial-Birth Abortion Ban Act of 2003.
His vote -- potentially decisive because four Justices who had voted in 2000 to strike down a somewhat similar state ban seemed unlikely to find the federal ban to be different in a constitutionally significant way -- very likely will depend in the end on how opinions are drafted and negotiated along the way toward decisions in the cases of Gonzales v. Carhart (05-380) and Gonzales v. Planned Parenthood (05-1382). But, at least during oral argument, Kennedy seemed unpersuaded that Congress either had succeeded in making its ban narrow enough to be upheld without disturbing the core right to abortion, or that, if upheld as written, it could ever be challenged at a time when such a ban would genuinely threaten the health of pregnant women seeking abortions.
The Court proceeded with the case without allowing itself or counsel to be diverted by a brief but noisy outburst from a spectator, who shouted out against abortion and warned the Court of repentance before he was hustled out. Chief Justice John G. Roberts, Jr., reacted with some humor, telling the lawyer at the podium at the time that the Court would allow her an extra 30 seconds to make up for the brief pause. (The spectator, identified as Rives Miller Grogan of Los Angeles, was arrested under a federal law against disruptions in the Supreme Court or on its grounds and for resisting arrest, and was turned over to local authorities for possible prosecution.)
Justice Clarence Thomas did not take part in the hearing; Roberts said at the outset that Thomas was absent "due to illness" -- apparently not serious -- but would join in the ruling on the basis of the briefs and the hearing record. Justice Samuel A. Alito, Jr., was on the bench throughout, but asked no questions and made no comments. Justice Antonin Scalia, one of the Court's most aggressive foes of abortion, played only a minor role, offering a couple of sarcastic comments but posing no questions.
Because of the Court's prior vote in Stenberg v. Carhart six years ago and the change in membership since, it has been widely assumed that Kennedy would hold the decisive vote this time -- even if the new Chief Justice and Justice Alito were to vote to uphold the federal ban. That, of course, made Kennedy the focus of attention on Wednesday. (The Chief Justice, though framing most of his several questions in a neutral way, appeared to be mainly searching for arguments to sustain the federal law, perhaps on the premise that it was different from the law nullified in Stenberg -- one of the government's main defenses of the ban.)
Kennedy's fervently expressed dissent in Stenberg had cast some doubt over whether he would ever be prepared to vote against a ban. But, on Wednesday, with not the slightest suggestion of emotion, he weighed in frequently and dispassionately on the medical debate -- for which, he indicated, he had read all of the hundreds of pages of medical testimony in the lower court trials of the two cases. |
