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Enigmatic jurist recasts the debate on abortion

THE NATION

Kennedy's opinion in a Supreme Court case encourages new laws to urge women not to end pregnancies.

April 22, 2007|David G. Savage | Times Staff Writer

WASHINGTON — In the spring of 1992, all that stood in the way of the Supreme Court's overruling the Roe vs. Wade decision was an Irish Catholic from Sacramento who firmly believed abortion was immoral.

But a few weeks before the decision was to be announced, Justice Anthony M. Kennedy told his colleagues he had changed his mind -- not about the morality of abortion, but about the wisdom of overturning a long-standing constitutional right. In the end, he drafted an uneasy compromise with Justices Sandra Day O'Connor and David H. Souter that preserved the core right to choose abortion, while also giving lawmakers more authority to regulate it.

Last week, Kennedy was back at the center of the court's abortion debate. And while the uneasy compromise still stands, this time he gave voice to his passion for protecting the "life of the unborn" in an opinion that upheld a national ban on a disputed midterm procedure that the National Right to Life Committee had first called "partial-birth" abortion.

Much of the focus last week was on the shift in the high court's makeup that allowed conservatives to carry the day on abortion. The retirement of O'Connor in 2005 and her replacement by President Bush with Samuel A. Alito Jr. turned a 4-5 vote in a similar case in 2000 into Wednesday's 5-4 decision in favor of limiting abortion.

But it was Kennedy who wrote the majority opinion, and unlike in 1992, his staunch opposition to abortion was fully on display. As his opinion makes clear, Kennedy views the issue through an antiabortion lens, not primarily as a matter of women's rights or medical privacy. He spoke of the "infant" being carried by the mother, rather than the "fetus." And he discounted the notion that the medical details of an abortion are the private business of doctors and patients rather than lawmakers.

Kennedy worded his opinion in such a way as to encourage new laws that would restrict doctors and discourage women from ending their pregnancies. "The government has a legitimate and substantial interest in preserving and promoting fetal life," he wrote, and officials may regulate "the medical profession in order to promote respect for ... the life of the unborn."

Kennedy, 70, remains something of an enigma.

Though a Reagan appointee, he has disappointed conservatives by casting decisive votes to strike down the death penalty for young murderers, to uphold gay rights and to throw out the Bush administration's initial rules for military tribunals at Guantanamo Bay, Cuba. He spoke out strongly in recent years against long, mandatory prison terms for minor drug criminals, but he also cast a key vote to uphold California's "three strikes and you're out" law in a case that sent a petty criminal to prison for life for stealing CDs from a Kmart.

Earlier this month, Kennedy cheered the environmental movement when he supplied the deciding vote to reject the Bush administration's policy on global warming and greenhouse gases.

"I have always seen him as a California Republican," said Columbia University law professor Michael Dorf, once a clerk for Kennedy. Neither staunch conservative nor strident liberal, "he tends to have a moderating influence" on the court, Dorf said.

On abortion, however, Kennedy's instincts are much closer to the court's conservatives.

His opinion last week sets the stage for the next round in the abortion wars. Rather than forbid abortions by law, the idea would be to dissuade pregnant women from going ahead with an abortion. In several states, lawmakers have proposed bills to require doctors and their pregnant patients to study an ultrasound image of the developing fetus. Other proposals would require doctors to give their pregnant patients more detailed descriptions of the planned surgery.

Kennedy's opinion says such laws would be constitutional even though they may intrude on the relationship between doctor and patient. "In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details" of the surgery, he wrote. "Any number of patients facing imminent surgical procedures would prefer not to hear all the details."

But their wishes must bow to the government's wish to protect the unborn, he said. "It is precisely this lack of information concerning the way the fetus will be killed that is of legitimate concern to the State.... The State has an interest in ensuring so grave a choice is well informed," he concluded.

Moreover, these grim details describing the surgery may "encourage some women to carry the infant to full term, thus reducing the absolute number" of such abortions, he added.

Several physicians who perform second-term abortions said they were troubled by the tone of the court's opinion.

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