Print Post
  • Justice Kennedy leaves the Supreme Court with the future of abortion law just as uncertain as it was in 1987. Tweet This
  • For better or for worse, few have influenced the relationship between sex and the constitution as much as Justice Kennedy. Tweet This

On July 9, President Trump nominated Judge Brett Kavanaugh to replace retiring Supreme Court Justice Anthony Kennedy. Justice Kennedy’s record during his over three decades on the Court is monumental, particularly his impact on family law, which will be studied and debated long after he has left the Court.

That Anthony Kennedy became a Supreme Court Justice at all is due largely to a controversy over family law. In 1987, Justice Lewis Powell retired, and President Reagan nominated Judge Robert Bork to replace him. This was Reagan’s third appointment to the Court, and progressives were worried that Roe v. Wade would be overturned. Judge Bork did little to alleviate their fears. Reagan’s other two appointees, Justices O’Connor and Scalia, had declined to comment on whether or not they would vote to overrule Roe during their confirmation hearings. But in his testimony, Bork plainly stated his belief that “Roe v. Wade contains almost no legal reasoning.”

Bork’s confirmation was defeated 58-42. In his place, President Reagan eventually nominated Anthony Kennedy, who was confirmed 97-0, even though the Reagan administration believed him to be just as conservative as Bork on the issue of abortion. After vetting him, the Reagan Justice Department reportedly believed “he was solidly opposed to Roe.”

The test wouldn’t come until 1992. By that time, there were two more additional Republican appointees on the bench—Justice Thomas and Justice Souter—bringing the total number of Reagan-Bush appointees to five. The Bush administration and a number of conservative states thought that it was finally the time to overturn Roe v. Wade, and with Planned Parenthood of Southeastern Pennsylvania v. Casey, they thought they had their chance.

Casey concerned some rather mild restrictions on abortion. “Restrictions“ is probably too strong of a word. Pennsylvania required anyone seeking an abortion to receive informed consent and undergo a 24-hour waiting period and required minors to receive parental consent and married women to notify their spouses. The Third Circuit Court of Appeals upheld all the provisions except the spousal notification requirement. So Planned Parenthood appealed to the Supreme Court.

Chief Justice Rehnquist, who dissented from the Court’s holding in Roe, had waited 18 years to overturn the case. At the Court’s conference following oral arguments, he had five votes to uphold the Pennsylvania laws and deal a serious blow to Roe’s status. But two days after Rehnquist drafted his opinion, Justice Kennedy made a surprise announcement.

It might be too much to say that Justice Kennedy “flipped.” His opinion—authored with Justices Souter and O’Connor—still allowed most of the Pennsylvania restrictions to stand. But instead of undermining Roe as Rehnquist planned, they held that “the essential holding of Roe v. Wade should be retained and once again reaffirmed.” Thanks to five Republican-appointed justices, abortion would remain an established right.

Casey opened with the now famous line, “Liberty finds no refuge in a jurisprudence of doubt.” But despite the intent to clarify abortion law, the decision only further muddled the waters. The Kennedy-Souter-O’Connor opinion significantly revised Roe in two significant ways. First, they acknowledged the state has an interest in the life of the unborn child from the “outset of pregnancy.” Second, Casey held that states could act on this interest and regulate abortion, so long as the regulations did not place an “undue burden” on a woman’s right to choose. If a regulation had the intent of placing obstacles in a woman’s path to obtaining abortion, then it would be declared unconstitutional.

The Casey decision was incredibly rare in that the Court’s opinion was joined by only three justices. Justices Stevens and Blackmun would have affirmed Roe outright without the Kennedy-Souter-O’Connor revisions. Justices Rehnquist, White, Scalia, and Thomas would have overturned Roe outright. There were thus more votes for overturning Roe than there were for the three-justice Casey opinion. But since Justices Stevens and Blackmun concurred in affirming Roe’s central premise, the words of Justices Kennedy, O’Connor, and Souter became law.

It’s not surprising that such a fractured decision has proven difficult to apply in practice. Casey has been litigated ad nauseam with inconsistent results. In Stenberg v. Carhart, the Court held that Nebraska’s partial-birth abortion ban imposed an undue burden in violation of Casey. But three years later (after Justice Alito replaced Justice O’Connor), the Court upheld a federal ban on the same practice in Gonzales v. Carhart.

Justice Kennedy, for his part, was consistent in how he viewed partial-birth abortion under Casey. He dissented from the Court’s opinion in Stenberg v. Carhart and then authored the majority opinion in Gonzales. Justice Kennedy believed that partial-birth abortion was gruesome and that the government would be fully justified in banning the procedure based on the state’s interest in protecting the sanctity of life. When the Stenberg majority overturned the ban, he chastised his colleagues for describing the grisly reality in clean clinical terms. He accused the majority of viewing:

the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life. Words invoked by the majority, such as ‘transcervical procedures,’ ‘[o]smotic dilators,’ ‘instrumental disarticulation,’ and ‘paracervical block,’ may be accurate and are to some extent necessary; but for citizens who seek to know why laws on this subject have been enacted across the Nation, the words are insufficient.

Whatever Justice Kennedy had in mind when he authored Casey, it was not partial-birth abortion. When he got the chance to undermine Stenberg in his Gonzalez opinion, he insisted that courts should defer to the medical judgment of the legislature in such controversial cases.

The Stenberg-Gonzalez turnaround proved that abortion law was still very much a “jurisprudence of doubt.” Even though Justice Kennedy had the final word in that controversy, the law was anything but clear. States began to regulate abortion under the reasonable belief that courts would defer to their medical judgment. But the courts were divided over what Casey really meant. The Third Circuit upheld a Texas law that required doctors who perform abortions to have admitting privileges at a nearby hospital. But the Seventh Circuit struck down a similar law passed in Wisconsin.

When the issues made it to the Supreme Court in 2016, all eyes were on Justice Kennedy. Was the law a medical judgment of the legislature to which the Court would defer, or was it an undue burden designed to frustrate women’s right to choose?

Justice Kennedy joined the majority opinion authored by Justice Breyer striking down the laws. In an opinion that second-guessed the medical judgment of the legislature—and seemed to contradict his holding in Gonzalesthe Court ruled that Texas’ health and safety requirements for abortion clinics were an unconstitutional burden on women’s rights.

Justice Kennedy didn’t write an opinion of his own in the case, and since it was his last chance on the Court where he could have clarified Casey, he leaves the Court with the future of abortion law just as uncertain as it was in 1987.

Much clearer, however, is Kennedy’s legacy on marriage law, beginning with Lawrence v. Texas in 2003 and culminating with Obergefell v. Hodges in 2015. With Lawrence, Kennedy was widely seen as gesturing towards a right to same-sex marriage. He cited “an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.” And indeed, going back to Griswold v. Connecticut, Roe, and Casey, marriage had been defined as a private and intimate bond that was not necessarily linked to procreation.

Ten years later, Justice Kennedy delivered the majority opinion that struck down the Defense of Marriage Act in United States v. Windsor. The Court once again stopped short of recognizing same-sex marriage but declared unequivocally that the government could not discriminate against same-sex couples.

After Windsor, the question wasn’t if same-sex marriage would become law, but when. By 2015, same-sex marriage was legal in 38 states. It was that summer that the Supreme Court released its opinion in Obergefell v. Hodges. Justice Kennedy delivered the opinion of the Court and declared bans on same-sex marriage unconstitutional.

Obergefell affirmed the social importance of marriage as “a building block of our national community” and as an “institution at the center of so many facets of the legal and social order.” Yet at the same time, Justice Kennedy also defined marriage as something that dignifies an intimate and private choice. He quoted the Court’s Griswold decision, which first created a constitutional right to birth control and also defines marriage as “a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred.”

Justice Kennedy recognized that marriage so defined—and, according to Griswold, severed from procreation—did not exclude same-sex couples. He reasoned that,

like choices concerning contraception, family relationships, procreation, and childrearing, all of which are protected by the Constitution, decisions concerning marriage are among the most intimate that an individual can make.

“Like” is the operative word in that sentence. According to Kennedy, the law protects a range of intimate acts: Childrearing, procreation, contraception, and marriage. But, in his view, these activities aren’t necessarily linked together. Rather than recognize a holistic account of how these actions may affect one another, the law now recognizes isolated expressions of intimacy.

Between abortion and marriage, Justice Kennedy’s leaves his mark on the latter with much safer standing. Regardless of where one stands on the meaning of marriage, the holding of Obergefell is simple and straightforward. Casey and its progeny, on the other hand, have proved practically unworkable. A majority of either liberal or conservative justices would surely have undermined Casey as soon as they gained a clear majority. Justice Kennedy’s presence on the Court has kept the ruling on life support, and it will be interesting to see how his replacement will rule.

But Justice Kennedy’s legacy on family law will be remembered long after he is gone. For better or for worse, few have influenced the relationship between sex and the constitution as much as he has.

Brian K. Miller is the Director of Legal and Public Affairs at the Center for Individual Rights and an Opinion Contributor to Forbes Magazine. He was named to Forbes "30 under 30" for his work in law and policy. His writings have appeared in National Review, Library of Law and Liberty, The University Bookman, Quillette Magazine, and The Public Discourse.