Gonzales upheld a ban on a procedure known as “intact dilation and extraction,” which many physicians believe is the safest way to terminate a pregnancy in certain cases. Beginning with Roe, the Court was reluctant to allow policymakers to second-guess a doctor’s medical judgment. This is why Roe held that during the first trimester “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician,” and it is also why Roe established that abortions must be allowed even in the late stages of pregnancy “where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.”
Kennedy’s opinion in Gonzales, however, gives lawmakers “wide discretion to pass legislation in areas where there is medical and scientific uncertainty.” The upshot is that the question of how to protect a woman’s health during an abortion is no longer left entirely to her doctor — much of it is now left to members of Congress or state lawmakers who are free to resolve “uncertainty” among physicians in favor of their personal policy preferences.
Nor is it likely that Gonzales represents the height of Kennedy’s willingness to permit restrictions on abortion. To the contrary, while Kennedy did not explain his reasons for doing so, Kennedy denied a request last week to stay Judge Owen’s decision in the Texas case. And remember, Kennedy co-signed the Court’s opinion in Casey — an opinion that alluded to what was almost certainly his own “personal reluctance” to uphold Roe v. Wade. There is some daylight between Judge Owen and Justice Kennedy on the subject of abortion, but the sun has still set pretty far on the right to choose.