Legal experts say court pick unlikely to lead directly to overturn of Roe

IMAGE: CNS photo/Leah Millis, Reuters

By Steve Larkin

WASHINGTON (CNS) — During his
30 years on the Supreme Court, Justice Anthony Kennedy was usually in the
middle of the court on life issues.

While he voted with the majority
in Planned Parenthood v. Casey, which reaffirmed the central holding of Roe v.
Wade, he was in the minority in Hill v. Colorado, which limited the ability of
pro-life activists to distribute pamphlets and engage in sidewalk counseling outside
abortion clinics. He also was in the minority in a decision striking down a
state ban on partial-birth abortion.

Although many in the
conservative movement have been hoping that, after Republican presidents
appoint enough justices, Roe v. Wade will be overturned, it seems unlikely that
President Donald Trump’s pick to replace Kennedy will lead directly to an

“What will probably happen is
that the Supreme Court would be more open to the states regulating and
restricting abortion. An outright reversal of Roe is less likely,” said Michael
Moreland, a professor of law and religion and director of the Eleanor H.
McCullen Center for Law, Religion and Public Policy at Villanova University.

“In a limited number of cases
they’ll make a sweeping decision — Roe, Obergefell — but the courts tend to
take these things in multiple steps. They might not go all the way,” he said.

Moreland added that the court
overturning Roe and finding a right to life in the due process clause of the
14th Amendment is extremely unlikely. That clause says that no one shall be
“deprived of life, liberty or property without due process of law.”

“Even (former Justice Antonin)
Scalia thought the Constitution left the abortion issue to the states,” he
told Catholic News Service.

A Pew Research poll conducted in
January found that 69 percent of Americans did not want to see Roe v. Wade

“One way in which Kennedy was an
originalist was he didn’t consider assisted suicide to be a constitutional
right,” said Cathleen Kaveny, a professor of theology and law at Boston

Kennedy was on the Supreme Court
when it heard its first right-to-die case in 1990. He was part of a 5-4
majority that upheld the lower court’s decision that the parents of someone in
a vegetative state could not direct the hospital to remove the feeding tube
without adequate proof that their daughter would make the same decision.

He also was on the court for a
unanimous ruling in Washington v. Glucksberg in 1997 that assisted suicide is
not protected by the due process clause.

In 2006, he was part of a
majority in Gonzalez v. Oregon, in which the court found that the Controlled
Substances Act could not be enforced against doctors who, following the Oregon
state law, prescribed medicine that would allow patients to end their life.

Kennedy also voted in favor of
several restrictions on the use of the death penalty while on the court.

In Atkins v. Virginia, he was
part of a majority that ruled the use of the death penalty unconstitutional if
the offender has an intellectual disability; in Roper v. Simmons he wrote the
majority opinion, which states that executing minors constitutes cruel and
unusual punishment, and in Kennedy v. Louisiana he wrote for the court that
imposing the death penalty for child rape where the child did not die also
constitutes cruel and unusual punishment.

“Maybe those limits on the death
penalty will go and maybe they won’t,” Kaveny said.

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