Ever since Sandra Day O’Connor resigned from the Supreme Court in 2006, anti-abortion activists have been playing a game of chicken with the justices. On one side are the activists, who want to push anti-abortion laws as far as they can without getting slapped down by the court. On the other side is Justice Anthony Kennedy, who wants to let states make abortions harder and harder to obtain without actually outlawing them. For more than 20 years, Kennedy has approved literally every anti-abortion law he’s encountered, leading some liberals to fear he’d finally abandoned Roe v. Wade altogether.
Soon, however, Kennedy may finally be forced to balk. On Tuesday, the ACLU sued to halt an extreme new Alabama law targeting minors who are seeking abortions. The measure is very clearly designed to degrade and humiliate teenage girls, far beyond what any state has previously attempted (and what the Supreme Court has allowed). Alabama already requires a minor to secure parental consent before obtaining an abortion, but if she cannot—if, for instance, it was her parent who raped and impregnated her—she can ask a judge to bypass this requirement. The new law takes that judicial bypass and turns it on its head, permitting the judge to appoint a lawyer to represent the minor’s fetus and advocate for its best interests. The judge may bring the district attorney into court to question the minor. And, worst of all, the district attorney can call witnesses to testify against the minor—and in favor of her fetus.
All of this is quite heinous. But it gets much worse. If the judge rules in favor of the minor, the district attorney is now permitted by law to appeal the ruling and make his case all over again to a higher court. By letting the district attorney call an endless number of witnesses then appeal an unfavorable ruling, the law creates a loophole that could let the state delay a minor’s abortion to the point that she couldn’t even legally receive one. (In Alabama, that’s 20 weeks, unless there is a threat to the mother’s health.) If Alabama gets away with this law, in other words, it’ll have effectively nullified young women’s constitutional right to an abortion.
There’s good reason to think, however, that Kennedy won’t let Roe die on his watch. It’s certainly true that Kennedy is conservative on abortion: During his time on the court, he’s only voted to invalidate one abortion restriction. But that one restriction is telling. In the landmark 1992 case Planned Parenthood v. Casey, Kennedy held that Pennsylvania couldn’t force women to receive consent from their spouses before obtaining an abortion. In a notoriously turgid opinion, Kennedy wrote that abortion “involve[s] the most intimate and personal choices a person may make in a lifetime, choices central to the liberty protected by the Fourteenth Amendment.” Then, in what Justice Antonin Scalia later mocked as the “famed sweet-mystery-of-life passage,” Kennedy wrote: “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”
Given the restrictions Kennedy has signed off on, it is hard to take this seriously. But we should try, because, for better or for worse, these words represent the core of Kennedy’s abortion jurisprudence. Kennedy undoubtedly believes that abortion is immoral and that states have a legitimate interest in trying to convince women not to get them. To his mind, states can make women wait several days before getting an abortion, or force women to hear anti-abortion propaganda before receiving the procedure. States can even impose absurd regulations on abortion clinics to force all but a few to shut down. In fact, Kennedy may even approve of a law that would eventually regulate all abortion clinics in a state (yep, Texas) out of existence.
So where does Kennedy draw the constitutional line? Oddly, the best answer lies not in his abortion decisions but in a gay rights case. Since Casey, Kennedy has never voted to overturn an abortion law—but he did cite Casey while striking down Texas’ anti-gay sodomy law in 2003. “The Casey decision,” Kennedy wrote, “again confirmed that our laws and tradition afford constitutional protection to personal decisions,” like “procreation and contraception.” To Kennedy, gay rights and abortion rights spring from the same constitutional principle: The right of “liberty” provided by the 14th Amendment. “The State,” he explained, “cannot demean [gay people’s] existence or control their destiny” by making their private bodily decisions a crime.
If we apply Kennedy’s logic here to the abortion question—as he clearly invites us to do—we can make out something like a constitutional test. Kennedy is not worried about laws that dissuade women from getting an abortion. He is concerned about laws that “demean” them and “control their destiny.” That’s why waiting periods are OK, but spousal notifications aren’t. One forces a woman to contemplate her decision for a while longer. Another forces a woman to hand over her fate to her husband.
Because the court has not considered law that unquestionably demeans women since Casey, Kennedy’s brief pro-choice turn is easy to be cynical about. It’s also easy to question whether Kennedy has abandoned the abortion cause altogether, especially after he wrote in a late-term abortion case that the government may forbid women from obtaining an abortion because they might come to regret it later. But it may well be that Kennedy simply hasn’t seen an abortion law that offends his definition of “liberty” like Pennsylvania’s spousal notification law did.
Not, at least, until now. Alabama’s new law is arguably even more demeaning than Pennsylvania’s spousal notification provision. Under the statute, a minor seeking an abortion who cannot obtain consent from her parents will have to listen as an attorney and a parade of witnesses testify on behalf of her fetus. She will have to hear any witness whom the district attorney chooses to subpoena—perhaps her neighbors, or her teachers—explain to her why her fetus wants her to keep it alive. Then, even if the judge rules in her favor, the district attorney can appeal the case to a higher court, dragging the degrading process out indefinitely. The law creates so many time-consuming hurdles that once a minor is actually allowed to get an abortion, she may be legally barred from going through with the procedure.
In the past, Kennedy has written favorably of impartial judicial bypass procedures, explaining that they provide “an expeditious and efficient means” to ensure that abortion regulations remain constitutional. He has supported parental consent and parental notification laws. But Alabama’s new measure is a different beast altogether: It essentially puts minors on trial for wanting to terminate their pregnancy, grotesquely pitting their own desires against the made-up wishes of the fetus inside them. There is no sense of due process and no respect for the minor’s liberty. If this is not an attempt to “demean” women and “control their destiny,” then nothing is.
There’s no guarantee, of course, that the Alabama law will make its way all the way to the Supreme Court; it’s so obviously unconstitutional that if a lower court strikes it down, the state may decline to appeal it. But for once, pro-choice activists should be hoping this case makes it to the justices. Very rarely does the abortion rights movement have a winning hand—a law that both degrades women who want an abortion and gives the state an opportunity to forbid them from obtaining one. It’s hard to imagine a law more antithetical to personal liberty, even Kennedy’s idiosyncratic interpretation of the concept. In its effort to crack down on abortion, Alabama may have inadvertently handed pro-choice activists their best chance to win big.