Supreme Court Justice Anthony Kennedy Could Dominate Abortion Cases

National   |   Steven Ertelt   |   Dec 30, 2005   |   9:00AM   |   WASHINGTON, DC

Supreme Court Justice Anthony Kennedy Could Dominate Abortion Cases Email this article
Printer friendly page

by Steven Ertelt Editor
December 30, 2005

Washington, DC ( — A University of Alabama law professor says that Justice Anthony Kennedy could become the dominant force on the issue of abortion on the Supreme Court if the Senate approves the nomination of appeals judge Samuel Alito.

On the current court, pro-abortion Justice Sandra Day O’Connor has largely dominated the issue. In 2000, she was the deciding vote and wrote the majority opinion in a case striking down a Nebraska ban on partial-birth abortions.

The decision had negative implications for other state abortion bans and prompted Congressional lawmakers to retool the national partial-birth abortion ban President Bush signed.

Should Alito be approved to replace O’Connor and should be take a pro-life position on abortion cases, as most groups on both sides expect, professor Bryan Fair says pro-abortion Justice Anthony Kennedy could become the driving force.

"Justice Kennedy will be the swing vote in many of the most controversial cases, including parental notification on abortion and other abortion issues that may come up and a wide variety of criminal, federal law and civil rights cases, not only in 2006 but in the next two or three years," Fair predicted.

"The court will have a 4-1-4 alignment with Justices Stevens, Breyer, Ginsburg and Souter on one side and Justices Roberts, Thomas, Scalia and Alito on the other. Kennedy will be the questionable vote in the center," he told the Decatur Daily News.

Where Kennedy stands on abortion cases is somewhat of a question.

Kennedy was expected to be another vote to overturn Roe when he was approved for the court, but he sided with the 6-3 majority in upholding the central tenants of Roe v. Wade.

Where he departed from the pro-abortion view was on the Nebraska case. Kennedy joined with former Chief Justice William Rehnquist and pro-life Justices Clarence Thomas and Antonin Scalia to provide a fourth vote to uphold the pro-life measure.

That dissent puts him in a position to determine the outcome of two key abortion cases the court will consider this term — a New Hampshire parental notification law and the pro-abortion lawsuit against the national partial-birth abortion ban.

Both cases involve the health exception issue that dominated the debate on the Nebraska ban and Kennedy could easily be the swing vote if he joined new Chief Justice John Roberts, Alito, Thomas and Scalia to uphold the two pro-life laws at issue.

Whether Kennedy would reverse his position on Roe is another question and pro-life advocates don’t believe they can count on that. As a result, they’re hoping for President Bush to have one more opportunity to appoint a pro-life Supreme Court justice before his final term is over in 2008.

Fair says he thinks that’s unlikely, even though the four other pro-abortion members of the court are advancing in age.