A Grim Future For Choice
At an event co-sponsored by the Center for American Progress in 2010, former acting Solicitor General Walter Dellinger warned that what’s left of Roe v. Wade may not survive the coming decade. “For a while,” Dellinger explained, he thought that the Roberts Court would “simply chip away and allow more and more regulations that sort of protected access for the most affluent women but really made it impossible for women who were vulnerable to geography, poverty [and] youth” to obtain abortions. Now, however, Roe has become “such a symbol of a kind of jurisprudence that conservatives have set themselves in opposition to . . . that someone who feels that way would think we can’t straighten out jurisprudence until we actually say the words ‘Roe v. Wade is overruled.”
Dellinger was envisioning a Court where Justice Kennedy’s been replaced by an even more conservative justice, but the truth is that the Court’s been inching in this direction for quite some time. Though Kennedy is widely perceived as the swing vote on abortion because he provided the key fifth vote not to toss out the right to choose entirely in Casey, this perception in not really grounded in evidence. Rather, as David Cohen explains in Slate, 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.” Moreover, the sole provision he voted to block was a Pennsylvania law requiring married pregnant women to notify their husbands before obtaining an abortion that was at issue in Casey. In other words, Kennedy has not voted to block a law restricting access to abortion for the last 21 years!
Beyond Casey, Kennedy’s most consequential abortion opinion is Gonzales v. Carhardt. Though pro choice advocates highlight Gonzales as an example of the Court’s condescending attitude towards women — Kennedy wrote that the right to choose should be narrowed because “some women come to regret their choice to abort the infant life they once created and sustained” — the 2007 opinion is just as significant for the devil-may-care attitude it takes towards physicians’ medical judgment.