Do they have any legitimate hope for this? Although Kennedy was a key member of the court upholding abortion rights in Planned Parenthood v. Casey, the pro-choice legal pundit Jeffery Toobin is worried that, 15 years later in Gonzales v. Carhart, this all-important swing voter demonstrated a significant shift toward restricting abortion.
From Kennedy’s 2007 opinion: “The State may use its regulatory power to bar certain procedures and substitute others, all in furtherance of its legitimate interests in regulating the medical profession in order to promote respect for life, including life of the unborn.” In making this decision, Kennedy affirmed as constitutional the “Partial-Birth Abortion Ban’, a law which Kennedy described as expressing—you guessed it—“respect for the dignity of human life.”
What makes abortion so complex and vexing an issue is precisely that the dignity of the mother and the dignity of her prenatal child seem to conflict. But if Justice Kennedy is willing to continue applying human dignity in a way which genuinely wrestles with this complexity, then his opinion is also likely to continue to shift in favor of laws which defend the dignity of prenatal human life.
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