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| Associate Supreme Court Justice Anthony Kennedy |
Roe, Casey, and Originalism in July 2005.)
Justice Anthony Kennedy, the Post article says, was the key "man in the middle" on several cases that were heard during this 2006-2007 term of the court and which were decided by 5-to-4 votes split otherwise along liberal-conservative ideological lines.
The '06-'07 court under still-new Chief Justice John G. Roberts Jr. has achieved an impressive number of unanimous or near-unanimous decisions. It has also decided a fair number of close 5-4 cases that had no clear ideological cast — with Kennedy casting the swing vote in most of them. But in the several 5-4 cases involving a sharp ideological divide, Kennedy has cast the decisive fifth vote in all of them.
This makes Kennedy's vote the sine qua non of close, ideologically based decisions which the view of recently retired justice Sandra Day O'Connor used to be. O'Connor's replacement, Justice Samuel A. Alito Jr., typically sides with the conservative Chief Justice Roberts and Associate Justices Antonin Scalia and Clarence Thomas. Associate Justices Ruth Bader Ginsburg, John Paul Stevens, David Souter, and Stephen Breyer usually line up on the liberal side. In many key cases, whichever cadre can earn Kennedy's support wins.
It came as a surprise to many court watchers that it was the conservative bloc which won Kennedy's support in the recent Gonzales v. Carhart decision, in a case concerning the late-term abortion procedure reviled by critics as "partial-birth" abortion. Kennedy himself wrote the April 2007 decision upholding the 2003 Partial-Birth Abortion Ban Act of the U. S. Congress. (The full text of the decision, along with its concurrences and dissents, can be read here.)
When the Carhart decision was handed down in April, the Post reported in this article:
"The government may use its voice and its regulatory authority to show its profound respect for the life within the woman," Justice Anthony M. Kennedy wrote. He said the ban on the controversial method for ending a midterm pregnancy is valid because other abortion procedures are still available.
Kennedy had (per the first-mentioned Post article) spoken some perhaps contrasting words from the high bench in 1992, in handing down the decision he himself had jointly written with O'Connor and Souter in another key abortion case, Planned Parenthood v. Casey. On that day, as a decision basically upholding Roe was being issued, he said that "at the heart of liberty is the right to define one's own concept of existing, of meaning, of the universe and of the mystery of life."
And there we have the nut of the abortion issue which continues to divide America: the woman's right to assert her "own concept" of moral right and wrong versus society's "profound respect for the life within the woman."
If Mork from Ork or E.T. the Extraterrestrial asked you to give an accounting of the proper, objective way to resolve the tension between those two ethical claims among Earth's populace, would you be able to comply? I don't know that I would.
I do believe the question needs to be debated again in the political arena, not the judicial one. That's one of the reasons why I hope Roe gets overturned. If that happens, the laws of the 50 states concerning (generally outlawing) abortion would once again come into force. These laws are presently held in abeyance under Roe, at least to the extent that they prohibit abortion outright in certain stages of pregnancy.
Those laws that make few or no exceptions to a state's general ban on abortion would surely become the focus of intense political efforts to change the law, given that polls show most Americans wanting abortions to be mainly illegal but with broad exceptions to protect a woman's life and health and to permit abortions in the case of rape or incest.
There might also be efforts to pass federal laws establishing abortion rights legislatively at a national level, and/or a movement to make abortions either unconstitutional or constituti0nally guaranteed, via an amendment to the U.S. Constitution.
So there would surely be a massive debate, during which a whole generation of citizens who weren't even alive when Roe was decided would have to confront the issue directly, stripped of any obfuscating questions of whether the Supreme Court's now-vacated pronouncements in favor of abortion rights were properly decided or not.
Another reason why I favor such a back-to-square-one debate is that we know more about how a fetus develops in the womb than we did in 1973. Some (admittedly disputed) scientific evidence now suggests that the fetus is able to feel pain in the first trimester, for instance. We didn't have much of a basis for validating such a claim of early fetal sentience in 1973. Modern diagnostic and imaging procedures now offer us such a basis.
Although we knew prior to 1973 that the heart of the fetus begins to beat in the fourth week after conception, at a juncture when a prospective mother may not yet know she is pregnant, that fact was still relatively new to the general public consciousness.
The human brain begins to form in the same early week of pregnancy and is formed enough to produce brain waves by six weeks — just two weeks after brain formation begins — which means that most abortions destroy a human brain that is in some sense functioning. We apparently weren't aware of just how early the fetal brain starts to function back in 1973. (I am drawing on "Science and Abortion," a religiously oriented pro-life tract, for some of this information.)
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| 10mm human embryo, about five weeks old |
Obstetric ultrasonography — ultrasound — is routinely used during pregnancy these days. Real-time ultrasound technology in which moving fetal images may be viewed by the patient as well as the doctor or technician as they are being gathered was not, as far as I can tell, widely available in 1973. (See this article on the history of real-time scanners. See this video at YouTube.com for a scan of 13-week-old fetus.)
If nothing else, the pervasiveness of this kind of imaging today has made the general public aware that a recognizably human life form is present in the womb well before the time of pregnancy at which many abortions are performed. That awareness is new since 1973.
All in all, more of us know more about pregnancy and fetal development today than people did in 1973, and most of that new knowledge comes from a revised medical science which makes it harder, not easier, to support abortion-on-demand morally during the second trimester of pregnancy.
Roe prohibited states outright from outlawing first-trimester abortions, based in part on scientific evidence that is no longer generally accepted. Subsequent Supreme Court decisions, though mainly upholding Roe, have tried to accomodate more up-to-date science concerning early fetal development in various ways, with varying degrees of success. Still, it's clear to me that if they had it to do all over again, the justices would need to approach at least the first-trimester abortion issue in a wholly different way.
And if first-trimester abortions could be legally proscribed by the states in view of present understandings of early fetal development, what would that say about second- and third-trimester abortions? States would presumably have even fewer constitutional hurdles to jump in outlawing most of them.
So I think our society needs to wipe the constitutional slate clean and hash out such issues in the political/legislative arena. That's why I'll be happy if Roe bites the dust. And if Justice Kennedy casts the deciding vote against Roe sometime in the not-too-distant future, I won't be at all surprised.
