Justice Kennedy again steps to the left

Justice Kennedy again steps to the left
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Supreme Court Justice Anthony Kennedy was the deciding vote in Monday’s major ruling to uphold abortion access in Texas, dealing a severe blow to dozens of states with similarly restrictive laws on the books.

Kennedy sided with the court’s liberal justices to strike down the most contentious pieces of a 2013 Texas law, marking the latest high-profile decision in which the Ronald Reagan appointee has stepped to the left.


One week ago, Kennedy was also the decisive voice in a case upholding race-based affirmative action in university admissions. Over the last year, he has also lent liberal justices support to uphold same-sex marriage and the Affordable Care Act, both rulings that infuriated the right.

Kennedy had long been considered the swing vote in the Texas abortion case because of his own split history on the issue since joining the high court in 1988.

He was one of the authors of the landmark 1992 decision in Planned Parenthood v. Casey, which created the standard that abortion laws could not create an “undue burden” for women. 

But he also wrote the majority opinion in a 2007 abortion case that upheld Congress’s ban on a form of late-term abortion.

Close observers of the Supreme Court had said it would be hard to predict Kennedy’s direction in the Texas case. 

Kennedy asked just a handful of questions during oral arguments in March, though he appeared to scrutinize the Texas argument that its state interests were greater than any “undue burden” placed on women seeking abortions.  

Kennedy also specifically pointed to evidence that showed “medical abortions are up nationwide but down significantly in Texas” — a trend that he noted “may not be medically wise.”

But he also suggested sending the case back to a lower court, allowing for more time and evidence about whether the law had led to clinic closures. That move may have continued to allow the state to enforcing the law, a scenario strongly opposed by the national group leading the lawsuit, the Center for Reproductive Rights.

Monday’s decision has been strongly condemned by conservative leaders including Speaker Paul RyanPaul Davis RyanPaul Ryan researched narcissistic personality disorder after Trump win: book Paul Ryan says it's 'really clear' Biden won election: 'It was not rigged. It was not stolen' Democrats fret over Trump-district retirements ahead of midterms MORE (R-Wis.) and the Center for Medical Progress founder David Daleiden. It’s been called “tragic,” “a stunning disappointment” and a “naked power grab” from anti-abortion groups.

“The justices in today's majority are happier to burden women's health and Texas's own democratic process rather than abortionists who want to operate free of safety regulations,” Carrie Severino, chief counsel of the conservative Judicial Crisis Network, wrote in a statement. 

The majority opinion in the Texas case, written by Justice Stephen Breyer, found the two provisions in question to be unconstitutional because they posed an “undue burden” on access to abortion services.

“We conclude that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes,” Breyer wrote in the 40-page opinion, which was also signed by Justices Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor.

Justice Samuel Alito wrote a scathing, 40-page dissenting opinion, which was joined by fellow conservatives Chief Justice John Roberts and Justice Clarence Thomas.  

“Determined to strike down two provisions of a new Texas abortion statute in all of their applications, the court simply disregards basic rules that apply in all other cases,” Alito wrote. 

Thomas also penned a separate dissent in which he said the court’s decision “ignores compelling evidence that Texas’ law imposes no unconstitutional burden.” 

The decision in Whole Woman’s Health v. Hellerstedt marks the court’s first major decision on abortion in about two decades and comes just months before the fall elections.

The majority opinion, Breyer later writes, is based on numerous studies that show low rates of abortion-related medical complications and testimony from experts who say the Texas law led to the closure of many clinics statewide.