AT THE VERY moment the Senate Judiciary Committee began hearings on the nomination of Judge Anthony Kennedy, the Supreme Court issued a ruling that emphasized the importance of the ninth justice. On a tie vote the court upheld a lower court's finding that an Illinois statute relating to abortion was unconstitutional. Because the Supreme Court was equally divided, the ruling is precedent only in the Seventh Circuit, not nationally. And as is customary in these cases, no opinion was issued nor were the votes of individual justices identified. The only clear reading of the court's action is that the division on questions arising out of the 1973 abortion ruling is as close as it can be.
This does not mean that the holding in Roe v. Wade is in immediate danger. The cases now coming before the Supreme Court involve state statutes to regulate abortion, not to criminalize it. In general, the justices have not looked with favor on state and local statutes such as those requiring waiting periods, extra medical personnel or the reading of health warnings to patients. These, the court has ruled, are really designed to make more difficult the exercise of a right that is constitutionally protected.
The Illinois statute in Monday's case, for example, required that a minor either notify a parent before obtaining an abortion or get permission from a judge to proceed without parental notification. While the Supreme Court has upheld this kind of alternative procedure, the lower court had found the judicial-request provision to be flawed. The statute also required a 24-hour waiting period for minors, a provision the Seventh Circuit found unconstitutional. This kind of forced delay has been ruled out for adults by the Supreme Court, but until Monday, there was still an open question about whether the Constitution permits such a restriction for minors. That is now settled for the Seventh Circuit -- at least until the issue comes up again from another court after the ninth justice has been sworn in.
Judge Kennedy, if he is confirmed, will clearly provide the swing vote in cases like this one. Moreover, and of greatest concern to the prochoice forces, if he sides regularly with conservatives in cases involving state statutes, it is quite likely that a direct challenge to Roe v. Wade will be brought again. The problem for the senators is that they cannot ask directly how he would rule on future abortion-related cases. But some sense of his attitudes on the general subject will certainly be sought. As Monday's ruling demonstrates, the stakes are high.