Abortion after Justice Kennedy’s Retirement

The Story:

Anthony Kennedy, who has been a Justice of the US Supreme Court for thirty years, announced at the end of the court’s 2017-18 session that he is retiring. He has written critical decisions about gay rights, campaign finance, and abortion. It is the question of the constitutional status of abortion that seems likely to dominate debate over who will succeed him.

The Background: 

In 1992, when many looked to the case of Planned Parenthood v. Casey either to re-affirm or to reverse the 1973 Roe v. Wade decision, Kennedy was part of a 3-justice centrist bloc, along with Justices O’Connor and Souter, who together wrote the plurality opinion, which didn’t quite produce either of those.

The centrist bloc in Casey re-affirmed the “essential holding” of Roe: abortions remained a choice protected by the 14th amendment against state infringement. But the centrists also significantly modified Roe by introducing an “undue burden” test.

States, Casey said, can regulate abortions after all so long as the regulations do not unduly burden the exercise of the right. Furthermore, what burdens are “undue” was to be — and subsequently has been — determined by the courts, and ultimately by the Supreme Court, on an ad hoc case-by-case basis.

The Thing to Know:

Many Republicans see the empty Supreme Court seat as the 5th vote on a 9 member court to overturn both Roe and Casey, and this shapes up as a major theme in Senate campaigns across the country between now and November.

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