The Supreme Court’s term doesn’t officially begin until the first Monday in October, but in the New York Times last week Linda Greenhouse gave her opening argument to Justice Anthony Kennedy in Cline v. Oklahoma Coalition for Reproductive Justice, a case challenging Oklahoma’s regulation of the abortion drug mifepristone, or RU-486. The law being challenged prevents the use of abortion-inducing drugs except using protocols approved by the FDA.
Greenhouse’s piece is a clear warning to Justice Kennedy that his vote to overturn Section 2 of DOMA last term doesn’t give him lasting liberal cred. She portrays him as a results-driven activist looking for an opportunity to undercut or even overturn Planned Parenthood v. Casey, the landmark abortion-rights decision he helped write, but Greenhouse’s column puts Kennedy on notice of how he will be treated by the liberal media if he doesn’t toe their line in this term’s controversial cases.
While I disagree with Greenhouse’s assessment of the merits of Cline, she is right that it will turn on Kennedy’s vote. And perhaps the only thing she and I have in common is a distrust of how Kennedy will vote in any one case.
Cline gives the Court the opportunity to clarify the ambiguous “undue burden” test Casey applied to regulations of abortion. Given Kennedy’s affection for Casey, there is little likelihood the Court would use this opportunity to overturn that decision, but it could give some a content to the characteristically amorphous standard conceived by Kennedy, Souter, and O’Connor in their plurality opinion. And, from my perspective at least, it seems evident that only an incredibly broad reading of “undue burden” would suffice to overturn the Oklahoma law. After all, it simply adopts the determination of the FDA and still leaves ample other methods of abortion open to women. Expanding the right to privacy beyond the decision to abort the child, to protect even the selection of a particular chemical compound, is probably a step too far, even for Justice Kennedy.
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