Open in Texas, for now.

Photographer: Matthew Busch/Bloomberg

Texas Abortion Case Tests Kennedy's Commitment

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
Read More.
a | A

With a new Supreme Court balance somewhere on the horizon, the end is coming for Justice Anthony Kennedy’s dominance of the court. The abortion case Whole Women’s Health v. Hellerstedt may be his swan song, and his last chance to leave a long-term impact on abortion rights.

That’s hugely significant for the case that’ll be argued Wednesday. The fate of Texas’s restrictive abortion laws turns on the interpretation of the 1992 decision in Planned Parenthood v. Casey. And Casey was the case in which Kennedy first formulated the vision of autonomy and dignity that led him to become a pioneer of constitutional rights for gay people. Casey is the heart of Kennedy’s legacy -- and he’ll want to preserve it.

It may be hard to remember the politics of a decision from almost 25 years ago. It was the first opportunity for the five justices appointed by Presidents Ronald Reagan and George H.W. Bush to revisit Roe v. Wade. Reagan had benefited from opposition to the landmark abortion-rights decision, and was on the record as opposing abortion on demand. It seemed conceivable at the time that the court would flatly reverse Roe.

But the coalition of Justices Sandra Day O’Connor, David Souter and Kennedy replaced Roe instead. The joint opinion they wrote had three major prongs.

One element was an emphasis on stare decisis, the idea that the court’s decisions shouldn’t be overturned lest it create systemic uncertainty about the meaning of the Constitution.

The phrase capturing that idea -- “Liberty finds no refuge in a jurisprudence of doubt” -- is usually attributed to Kennedy’s chambers. But the deep commitment to precedent and gradualism turned out to be the intellectual hallmark of Souter, not the other two justices. Souter admired Justice John Marshall Harlan, another Burkean conservative who believed that constitutional norms should be preserved and that liberty should be expanded only carefully and slowly, with an emphasis on cultural continuity.

The second major component of the Casey opinion was a pragmatic compromise that altered the trimester framework announced in Roe. The pragmatism was characteristic of O’Connor, one of the great compromisers in the court’s history. The Casey framework held that prior to a fetus’s viability, state laws must not place an “undue burden” on abortion rights. After viability, states were free to regulate abortion except where necessary to protect the life or health of the mother.

The third aspect of the Casey plurality opinion was uniquely Kennedy’s: a philosophical exposition of why reproductive rights matter. It’s worth quoting the passage in full, because it’s Kennedy’s most important expression of the philosophy that underlay not only Casey but also the gay-rights cases, in which he cited it repeatedly:

These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. 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.

The passage, derided by Justice Antonin Scalia as Kennedy’s “sweet mystery of life” passage, in fact amounts to a substantial defense of the values of dignity and autonomy and why they’re embedded in the due process clause of the Constitution, which mentions neither.

The Whole Women’s Health case is about Casey’s undue burden standard -- whether Texas can require, at significant cost, that abortion clinics operate more like a hospital --  not Kennedy’s account of autonomy. Yet the two are linked by both appearing in the same case. O’Connor and Souter have retired. Today, Kennedy is the last exponent of Casey. He won’t accept an interpretation of that precedent that would be seen as vitiating it.

That provides a tremendous clue as to how he’s likely to vote. If Casey were read to uphold laws that will lead to the closing of most of a state’s abortion clinics, it would no longer be seen in historical terms as an important case maintaining the abortion right. Instead, Casey would be seen as having opened the door to the effective overturning of Roe.

Kennedy can’t let that happen, because it would fatally undercut his legacy as a justice. The arc of his legacy starts with Casey and follows a dramatic course to last summer’s gay-marriage decision, Obergefell v. Hodges. The Casey doctrine of autonomy and dignity is the key element of that dramatic arc -- which means Kennedy needs the Casey opinion to stay alive.

Striking down the Texas abortion law would reaffirm Casey’s holding and values. Kennedy could always claim that the Texas law doesn’t impose an undue burden, and thus is consistent with Casey. But the world would know better; I strongly suspect Kennedy would, too.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

To contact the author of this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor responsible for this story:
Stacey Shick at sshick@bloomberg.net