Kennedy likely to be swing vote in abor­tion case

Modern Healthcare - - POLITICS - —Lisa Schencker

Last year, Jus­tice An­thony Kennedy was the de­cid­ing vote in the U.S. Supreme Court’s de­ci­sion to le­gal­ize same-sex mar­riage. This year, he could swing the court on abor­tion and birth-con­trol cov­er­age.

For years, Kennedy has been the di­vided court’s piv­otal vote in po­lar­ized so­cial is­sues. He could be again this year when the court con­sid­ers cases in­volv­ing the Obama ad­min­is­tra­tion’s work­around for not-for­profit religious groups on the Af­ford­able Care Act’s con­tra­cep­tion cov­er­age man­date, and how far states can go in reg­u­lat­ing abor­tion providers. The abor­tion case arises from a Texas law tight­en­ing reg­u­la­tions on abor­tion clin­ics that likely would cause most to close.

That case, Whole Woman’s Health v. Cole, is seen by many as a test of whether the Supreme Court’s con­ser­va­tive ma­jor­ity is will­ing to let states sub­stan­tially roll back the con­sti­tu­tional right to abor­tion that the court rec­og­nized in Roe v. Wade in 1973. And it could demon­strate the im­por­tance of this year’s pres­i­den­tial elec­tion in de­ter­min­ing whether Amer­i­can women con­tinue to have that right. The next pres­i­dent could tip the court’s political bal­ance, since Kennedy turns 80 in July, while Jus­tice Ruth Bader Gins­burg will be 83 and Jus­tice An­tonin Scalia will be 80 in March.

Dou­glas Lay­cock, a Univer­sity of Vir­ginia law pro­fes­sor, said it would be “stun­ning” if Kennedy is not the swing vote in the abor­tion case. He is gen­er­ally seen as a prag­matic and some­times un­pre­dictable con­ser­va­tive.

The four other con­ser­va­tives, in­clud­ing Scalia, al­most cer­tainly will sup­port the Texas rules, while the four lib­er­als, in­clud­ing Gins­burg, al­most surely will rule against them.

Lay­cock pre­dicts Kennedy will be the de­cid­ing vote for the Obama ad­min­is­tra­tion on the con­tra­cep­tion is­sue.

An­thony Kennedy Po­si­tion As­so­ciate jus­tice, U.S. Supreme Court

Ten­ure in job Con­firmed in 1988

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