All Eyes on Kennedy in Court Debate On Abortion

Last year, Kennedy wrote the majority opinion in a 5 to 4 ruling that banned the death penalty for juvenile offenders. He had voted to uphold it 16 years earlier.

In a major 1992 abortion case, Planned Parenthood v. Casey , Kennedy voted at the justices' conference to uphold Pennsylvania's strict abortion regulations but later switched and cast a fifth vote to reaffirm Roe v. Wade , according to internal court documents in the late Justice Harry A. Blackmun's papers at the Library of Congress.

This time, though, opponents of the ban must overcome not only Kennedy's vote in Stenberg v. Carhart but also the emotional dissenting opinion that accompanied it, in which he blasted "a procedure many decent and civilized people find so abhorrent as to be among the most serious of crimes against human life."

The procedure, known medically as "intact dilation and extraction," or "D & X," usually occurs in the second trimester of pregnancy. A doctor partially delivers a fetus, then suctions out its brain and collapses its skull to permit the head to exit.

The Guttmacher Institute, a reproductive-health organization affiliated with Planned Parenthood, has called the procedure rare and said only 2,200 were performed in 2000. Abortion rights advocates say the procedure is necessary in a relatively few cases when a fetus has a fatal birth defect such as anencephaly.

But abortion opponents say that estimate is too low and that the operation is tantamount to infanticide. In 1997, Nebraska, like many other states, outlawed it except when necessary to save a mother's life.

But the Supreme Court, by a vote of 5 to 4, struck down Nebraska's law, because it lacked an exception to preserve a mother's health. The court also ruled it was so vaguely worded that it might also criminalize other second-trimester abortion procedures.

In his dissent, Kennedy argued that the court had violated his understanding of the compromise forged in the Casey ruling: that the core right established in Roe would remain but states would have meaningful power to regulate abortion.

Like Nebraska's, the federal ban lacks a health exception. The Republican-controlled House and Senate instead issued "findings," based on congressional testimony, that the procedure is never necessary to protect a woman's health. Supporters of the law say the Supreme Court must defer to those findings.

Abortion rights advocates say the findings are wrong because "D & X" sometimes poses less risk of infection or surgical mishap than a common alternative, "dilation and evacuation," in which the fetus is pulled apart before being removed from the uterus.

So far all federal lower courts to rule on the law have said its lack of a health exception violates Stenberg . As a result, the ban has never been in effect.

At the Supreme Court, abortion rights advocates hope Kennedy also feels bound by Stenberg , even though he opposed it at the time. They also believe Kennedy could be persuaded by new information about the need for a health exception that the court did not have before it ruled in 2000.

"This will appeal to Justice Kennedy's sense of wanting to look at the medical evidence," said Nancy Northup, president of the Center for Reproductive Rights, which represents Leroy Carhart, the Nebraska physician who also challenged that state's law six years ago.

The California Medical Association is trying another tack -- appealing to Kennedy's belief in states' rights.

The federal ban invokes Congress's authority to regulate interstate commerce. But the CMA's friend-of-the-court brief argues that Congress's commerce authority cannot trump the states' traditional regulation of medical practice -- a tradition Kennedy cited earlier this year in striking down a Justice Department effort to prevent Oregon doctors from prescribing lethal doses under that state's assisted-suicide law.

The CMA brief quotes passages from Kennedy's opinion noting that "regulation of health and safety is 'primarily, and historically, a matter of local concern,' " particularly when it comes to "the practice of medicine."

"If it weren't abortion, his opinion in the Oregon case would apply," said Karlan, who co-wrote the brief. "The hard thing in partial-birth abortion is that he has a visceral feeling and has already expressed distaste for the procedure."