regarded as gruesome. These kinds of abortions were rare and often undertaken because the woman’s health or life was in danger. But there was no denying the shock value of the details.
Still, in the 2000 case of
Stenberg v. Carhart
, the Supreme Courtstruck down a Nebraska “partial birth” abortion law by a vote of 5–4. As ever, O’Connor provided the swing vote, concluding that the law was unconstitutional because it failed to include an exception allowing the procedure to be used to protect the health of the mother. Breyer wrote the opinion for the Court in 2000, the highest-profile majority opinion of his career.
But when George W. Bush took office the next year, along with a Republican Congress, one of his first priorities was to sign the Partial-Birth Abortion Ban Act, which was almost identical to the Nebraska law that the Court had just struck down. It was immediately challenged in Court in a case called
Gonzales v. Carhart
. (The 2000 and 2006 cases had the same plaintiff, LeRoy H. Carhart, who was one of the few doctors willing to admit publicly that he performed the partial-birth procedures. George Tiller, another doctor who performed such abortions, was murdered by an anti-abortion terrorist in 2009.)
There was, of course, one critical change in the Court between 2000 and 2006: Alito had replaced O’Connor. In this case, as in many others, the switch made all the difference and the Court now voted 5–4 to uphold the federal law. (Alito said nothing during the oral argument, but it wasn’t hard to guess how he would vote; his wife and family doctor, who were in the audience, scowled and shook their heads as the lawyer for Planned Parenthood argued her case.) Roberts assigned the opinion in
Gonzales v. Carhart
to Kennedy.
Kennedy had a complex history in abortion cases. Reagan nominated Kennedy in 1987, following the Senate’s rejection of Robert Bork. There had been no doubt that Bork would have joined the anti
-Roe
forces, but Kennedy’s history and his confirmation testimony were opaque about abortion. In 1992, Kennedy joined with O’Connor and Souter in the
Casey
decision to preserve what they called the “essential holding” of
Roe v. Wade
. (Their unsigned collaborative opinion was joined by Blackmun and Stevens to give them a majority.) In subsequent years, though, Kennedy had been moving to the anti-abortion side of the Court, voting to uphold various restrictions on the practice. In 2000, Kennedy dissented vigorously in the first
Carhart
case. Now, six years later, Roberts gave Kennedy the chance to turn that dissent into a majority opinion, which was released in April 2007.
Kennedy made the most of the opportunity. He discussed the abortion procedures in great and gory detail. (“Rotating the fetus as it is being pulled decreases the odds of dismemberment.… The doctoropened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out.”) He said almost nothing about the kind of medical conditions that would prompt a woman to subject herself to such procedures. Overall, Kennedy’s rhetoric was straight out of the anti-abortion movement. He referred to the fetus as a “baby” and a “child.” The obstetricians and gynecologists who performed the procedures were “abortion doctors.” The state “has respect for human life at all stages in the pregnancy” and a “legitimate and substantial interest in preserving and promoting fetal life.” Kennedy’s opinion was a vivid demonstration of the significance of Alito’s appointment—and of the dedication of the conservatives on the Court to change. The addition of one new justice posed a clear threat to
Roe
,
Casey
, and abortion rights generally.
Ginsburg had little patience for Kennedy in the best of circumstances. The Californian’s airy and vague rhetoric about dignity and the like offended the practical New Yorker. (Ginsburg agreed with Kennedy on the merits of cases more often
Still, in the 2000 case of
Stenberg v. Carhart
, the Supreme Courtstruck down a Nebraska “partial birth” abortion law by a vote of 5–4. As ever, O’Connor provided the swing vote, concluding that the law was unconstitutional because it failed to include an exception allowing the procedure to be used to protect the health of the mother. Breyer wrote the opinion for the Court in 2000, the highest-profile majority opinion of his career.
But when George W. Bush took office the next year, along with a Republican Congress, one of his first priorities was to sign the Partial-Birth Abortion Ban Act, which was almost identical to the Nebraska law that the Court had just struck down. It was immediately challenged in Court in a case called
Gonzales v. Carhart
. (The 2000 and 2006 cases had the same plaintiff, LeRoy H. Carhart, who was one of the few doctors willing to admit publicly that he performed the partial-birth procedures. George Tiller, another doctor who performed such abortions, was murdered by an anti-abortion terrorist in 2009.)
There was, of course, one critical change in the Court between 2000 and 2006: Alito had replaced O’Connor. In this case, as in many others, the switch made all the difference and the Court now voted 5–4 to uphold the federal law. (Alito said nothing during the oral argument, but it wasn’t hard to guess how he would vote; his wife and family doctor, who were in the audience, scowled and shook their heads as the lawyer for Planned Parenthood argued her case.) Roberts assigned the opinion in
Gonzales v. Carhart
to Kennedy.
Kennedy had a complex history in abortion cases. Reagan nominated Kennedy in 1987, following the Senate’s rejection of Robert Bork. There had been no doubt that Bork would have joined the anti
-Roe
forces, but Kennedy’s history and his confirmation testimony were opaque about abortion. In 1992, Kennedy joined with O’Connor and Souter in the
Casey
decision to preserve what they called the “essential holding” of
Roe v. Wade
. (Their unsigned collaborative opinion was joined by Blackmun and Stevens to give them a majority.) In subsequent years, though, Kennedy had been moving to the anti-abortion side of the Court, voting to uphold various restrictions on the practice. In 2000, Kennedy dissented vigorously in the first
Carhart
case. Now, six years later, Roberts gave Kennedy the chance to turn that dissent into a majority opinion, which was released in April 2007.
Kennedy made the most of the opportunity. He discussed the abortion procedures in great and gory detail. (“Rotating the fetus as it is being pulled decreases the odds of dismemberment.… The doctoropened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby’s brains out.”) He said almost nothing about the kind of medical conditions that would prompt a woman to subject herself to such procedures. Overall, Kennedy’s rhetoric was straight out of the anti-abortion movement. He referred to the fetus as a “baby” and a “child.” The obstetricians and gynecologists who performed the procedures were “abortion doctors.” The state “has respect for human life at all stages in the pregnancy” and a “legitimate and substantial interest in preserving and promoting fetal life.” Kennedy’s opinion was a vivid demonstration of the significance of Alito’s appointment—and of the dedication of the conservatives on the Court to change. The addition of one new justice posed a clear threat to
Roe
,
Casey
, and abortion rights generally.
Ginsburg had little patience for Kennedy in the best of circumstances. The Californian’s airy and vague rhetoric about dignity and the like offended the practical New Yorker. (Ginsburg agreed with Kennedy on the merits of cases more often
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