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What Justice Kennedy’s resignations means for reproductive rights

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On June 27, 2018, Supreme Court Justice Anthony Kennedy announced his plan to officially resign on July 31.

Often considered the “swing vote” on the Supreme Court, Justice Kennedy spent his 30-year career making arguably the most bipartisan decisions in the courtroom. Over time, Kennedy has served alongside four loyally conservative justices (John Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch) and four devout liberal justices (Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan, and Stephen Breyer), but defied a clear label himself. Although he was nominated by Republican president Ronald Reagan in 1988, rather than aligning himself with commonly held Republican ideas, Kennedy’s votes were the least predictable, siding with the liberal justices or conservative justices on a case-by-case basis. He effectively stepped into the role of the ultimate “decider” of the cases that were split by party lines, which resulted in Justice Kennedy playing a key role in the impact the courts have had on divisive social justice issues, like affirmative actiongay rights, and reproductive rights.

In 1992, just four years after he was first appointed to the Supreme Court, Justice Kennedy’s vote decided a case that would not only forever change our view of his influence on the court, but would help protect the lives of women and their bodily autonomy in the United States. In Planned Parenthood v. Casey, several abortion clinics in the state of Pennsylvania sued the state governor over a legal provision that required women to wait 24 hours and show “informed consent” before undergoing an abortion. If the woman was a minor, she needed to prove she had parental consent, while if the woman was married, she needed to prove she had consent from her spouse.

Justice Kennedy surprised the country when he co-wrote the Court’s opinion that essentially reaffirmed Roe v. Wade, the landmark case that declared a woman’s right to an abortion is constitutional. Kennedy stated that he believed no law should place an undue burden on women seeking an abortion procedure, solidifying the protection of abortion rights in doing so.

Planned Parenthood v. Casey was not the only time Kennedy made his flexible viewpoint clear. In 2016, Kennedy again proved to be the “swing vote” in the case Whole Woman’s Health v. Hellerstedt, which struck down parts of abortion restrictions that would have forced a significant number of Texas clinics to close.

Because Kennedy aligned himself with the more liberal justices in cases related to reproductive rights, Democrats and progressives had come to rely on him as a key figure in the fight to protect existing abortion rights at the federal level. With his retirement, therefore, comes the inevitable worry about the fate of those existing rights. Since the beginning of his presidential campaign, Trump has promised to appoint pro-life justices. and, as president, he now has the power to nominate a new justice to take Kennedy’s place. If his nominee is confirmed by the Republican-majority Senate, the court will officially be conservative-majority, jeopardizing the landmark abortion cases in particular. Without Kennedy’s “swing” vote, Roe v. Wade, which has secured the right to abortion for 45 years, could be overturned.

Justice Kennedy brought more to the courtroom than a vote to protect abortion rights, as important as that contribution was. Kennedy also defied partisanship. Kennedy focused more on compromise and reaffirming our nation’s freedom from an ethical, just perspective, rather than uniformly aligning with a specific side of the political spectrum. The man expected to end Roe v. Wade’s legacy in 1992 was the very man who saved it. Kennedy challenged us to view the social issues presented to our country not as Democrats or Republicans, liberals or conservatives, but as Americans who want to make their home a better place for everyone. We can only hope for the same in our newest justice.



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