Where Did People Get the Idea That Justice Anthony Kennedy Will Provide a Swing Vote for Abortion Rights?

The law, lawyers, and the court.
Nov. 22 2013 11:34 AM

When the Swing Justice Doesn’t Swing

Rumors of Anthony Kennedy as a moderate on abortion are wildly overblown.

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Since Kennedy joined the court, there have been 10 such peripheral abortion cases. Looking closely at them, we can see almost the same track record as with the more obvious abortion restrictions. In eight of these cases, Kennedy voted against the interests of abortion rights. What about the other two cases then? Maybe those prove he swings on abortion. Both of those cases were so uncontroversial in the context of abortion that Kennedy’s vote was joined by other justices who are universally perceived as against abortion. In both cases, Chief Justice William Rehnquist and Justice Byron White (the original dissenters in Roe) joined Kennedy, as did Scalia and Thomas (Thomas only joined for one; he wasn’t on the court for the other). In other words, if these two votes in peripheral abortion cases make Kennedy a “swing justice” on abortion, then they would also make the court’s staunchest antiabortion justices swing justices.

Further evidence that Kennedy is not a swing vote in the opinions he has authored about abortion: The language he wrote in Casey about dignity, autonomy, and self-definition was technically jointly authored by three Justices—Kennedy, O’Connor, and David Souter. Since then, however, when Kennedy has authored opinions himself about abortion, he has been blistering.

In 2000 he dissented from the court’s decision that a Nebraska restriction on second-trimester abortions was unconstitutional. Kennedy’s dissent uses language straight out of the antiabortion movement’s talking points. He calls the doctor an “abortionist.” He calls the fetus “unborn” life. He calls the abortion procedure at issue one that “many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life.” He was arguably even worse in 2007 when he wrote the opinion for the court upholding a federal version of the Nebraska law. In that case, he likened the procedure to “infanticide” and paternalistically talked about the importance of preventing women from having “regret” about their decisions. In dissent, Ginsburg was so angered by Kennedy’s language that she accused him of having “hostility” toward the right to abortion and invoking an “antiabortion shibboleth” in defense of his position.

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Given all the evidence, we should be long past considering Kennedy a swing vote on abortion. He has voted to allow 20 of the 21 abortion restrictions he has evaluated to take effect. He has sided with the antiabortion position in all of the peripheral abortion cases that have been controversial. And the opinions he has written about abortion have become increasingly hostile to abortion rights.

Looking at Kennedy in this more accurate light, what can we predict about efforts to prevent antiabortion legislation from taking effect? Practically, it probably doesn’t change much in terms of litigation strategy in the Supreme Court. The other four conservative justices are almost guaranteed to vote against abortion rights, so the only option is to try to get Kennedy to take a more moderate position. For advocates before the court, that shouldn’t change, but for those of us who watch on the outside, expectations should be seriously tempered.

With those tempered expectations, all hope isn’t lost though. We have to put our efforts elsewhere and stop hoping for Kennedy to save us. Those efforts can be and have been successful. Political organizing and mobilization can work—just look at Albuquerque earlier this week or California last month. Lower courts, both state and federal, can protect abortion rights, as we’ve seen last month in the Oklahoma Supreme Court and in August in the 9th Circuit. Working to limit the effect of newly passed laws can also be somewhat successful, as Pennsylvania’s recent experience demonstrates. And with the Senate changing the filibuster rules for judicial nominees, we can now focus our efforts on pushing the president to nominate federal judges who are strong and unabashed proponents of abortion rights.

Even in this scary age, there is hope for abortion rights. But we should be honest about one thing: It’s very unlikely to come in the form of Anthony Kennedy.

David S. Cohen, associate professor at the Drexel University Thomas R. Kline School of Law, is co-author of a forthcoming book about anti-abortion terrorism and was co-counsel for plaintiffs in Ballen v. Corbett. Follow him on Twitter.