Only a day after the election, the Supreme Court heard oral argument on Gonzales v. Carhart, the case testing the federal ban on partial-birth abortion. On this argument--and this case--much will hinge. If the Supreme Court sustains the federal bill, the decision would mark, in effect, the end of the regime of Roe v. Wade, even if the Court does not explicitly overrule that earlier decision.
As everyone has long known, the outcome will hinge on Justice Anthony Kennedy. He dissented in a precise, impassioned opinion six years ago when the Court, by the narrowest of votes, struck down a comparable bill on partial-birth abortion in Nebraska in Stenberg v. Carhart. Justice O'Connor had been the swing vote then, providing the fifth vote for overturning the law on partial-birth abortion in Nebraska and, by inference, in thirty other states. But now O'Connor is gone, replaced by Samuel Alito. (John Roberts has replaced Chief Justice Rehnquist, but Rehnquist had also been in dissent in the earlier case.) And so there is a good chance that the Court may now flip the decision in Stenberg v. Carhart and come out with a strikingly different decision in Gonzales v. Carhart.
Dr. Carhart, in other words, has remained the same. And in league with the federal district court, Richard Kopf managed to restrain the federal bill on partial-birth abortion, as he had managed to resist the same bill in Nebraska. The question, though, is whether Justice Kennedy has remained the same. With O'Connor gone, Kennedy has the chance to ascend to that critical position as the swing judge. In his dissent in Stenberg, he wrote with anger and precision as he opposed this gruesome procedure of partial-birth abortion. But there are the lures of that special leverage that come with the position of the swing judge, the judge who can determine the outcome and dictate the terms on which the case is settled--or unsettled.
And so attention was fixed on Justice Kennedy during the oral argument on Gonzales v. Carhart. From a close reading of the transcript, it appears that Kennedy has positioned himself to come down on either side. Congress had appended to its bill a finding that a partial-birth abortion is never necessary for the health of the mother--and so there was no need to append to the bill a health exception. But during the oral argument, Kennedy affected to take seriously the concern that, under certain conditions, a partial-birth abortion might be safer for a woman because there would be no dismembering of a child in the womb, consequently there would be no instruments introduced into the body threatening to perforate the uterus, and there would be no fetal parts left behind where they could cause infections. Kennedy seemed to be straining earnestly to gauge just how serious was the danger posed to the pregnant woman.
All this looks like an elaborate prelude to his coming down against the ban. But then, through the haze of the oral argument, Kennedy managed to ask the most decisive question--the question that put everything in order. And it also may have disclosed the path he will finally take. Chief Justice...