Counting Justice Kennedy’s “Swing” Abortion Votes at Slate

November 24th, 2013

A recent piece at Slate, titled “When the Swing Justice Doesn’t Swing” argues that Justice Kennedy is not a moderate on abortion. In support of that, the article notes that other than Casey, where he voted to strike down the husband notification requirement, Kennedy has voted to uphold all other abortion regulations.

From joining the court in 1988 to this week’s decision in the Texas case, Kennedy has been involved in 12 cases addressing abortion restrictions. In those 12 cases, he has voted on whether 21 different abortion restrictions could take effect. We already know that he voted to strike down Pennsylvania’s husband notification requirement. Besides that, how many of the other 20 restrictions has Kennedy voted to block from taking effect? Exactly zero.

You read that correctly. The so-called swing justice, Anthony Kennedy, has voted to strike down only one of the 21 abortion restrictions that have come before the Supreme Court since he became a justice. Put another way, in his time on the court, Kennedy has voted to allow each of the following provisions to go into effect (in chronological order): an antiabortion preamble to abortion legislation, a restriction on public employees/facilities performing abortion, an exacting requirement for determining viabilitya judicial bypass procedure, a requirement that the physician notify a minor’s parenta two-parent notification requirement, a two-parent judicial bypass exceptiona narrow definition of medical emergency, a strict informed-consent requirement, a parental consent requirement, a 24-hour waiting period, strict recordkeeping and reporting requirementsa prohibition on public funding of abortionan extensive regulation of abortions after 20 weeksa different judicial bypass procedurea physician-only requirementa state “partial-birth” abortion prohibitiona parental notification law without a health exceptionthe federal “partial-birth” abortion prohibition, and, in Texas earlier this week, a requirement that doctors have admitting privileges at a local hospital.

When I first read this, I thought, huh, that’s a lot more abortion cases than I remembered. This long string cite links to Webster v. Reproductive Health Services (3 times), Ohio v. Akron Center for Reproductive Health (2 times),  Hodgson v. Minnesota (2 times), Planned Parenthood v. Casey (4 times), Dalton v. Little Rock Family Planning Services (once), Leavitt v. Jane (once), Lambert v. Gallatin (once), Mazurek v. Armstrong (once), Stenberg v. Carhart (once), AYOTTE V. PLANNED PARENTHOOD OF NORTHERNNEW ENG (once), and GONZALES v. CARHART (once).

If you haven’t heard of several of those opinions, you aren’t alone. Dalton was a unanimous per curiam opinion from 1996. Leavitt was a unanimous per curiam from 1996. Lambert was a unanimous per curiam from 1997. Mazurek was a per curiam from 1997, with a dissent by Justices Stevens, Ginsburg, and Breyer.  Also, the majority opinion in Hodgson was authored by Justice Stevens. Everyone joined the holding, and O’Connor dissented on some part of it. Further, Ayotte was unanimous, and decidedly did not touch any abortion precedent. Of the 21 anti-abortion rules cited, 7 are from cases that are either unaninmous (one was 6-3), or didn’t touch on abortion precedents. I think it is a stretch to include these here as evidence that Kennedy is outside the mainstream.

So really we are left with the cases I would expect to be included: Webster (3 laws), Akron (2 laws), Casey (4 laws), Stenberg v. Carhart (one law), and Gonzales v. Carhart (one law). I think it would be more fair to say four cases rather than summing them up, eleven laws (with the long string cite, it was tough to figure out which issue matched with which case).

The decision to uphold the main provision in Casey was momentous. In Stenberg, he did not join the dissenting opinions of the Chief, Scalia, or Rehnqusit. And the fact that Kennedy wrote Gonzales v. Carhart, leaving Casey intact was very significant. I appreciate that abortion-rights activists may not be happy with Kennedy’s votes–I don’t have any comment on whether Kennedy uses “language straight out of the antiabortion movement’s talking points”–but he does not seem to be as nearly outside the mainstream as the article suggests.