Enigmatic jurist recasts the debate on abortion

In the spring of 1992, all that stood in the way of the Supreme Court’s overruling the Roe vs. Wade decision was an Irish Catholic from Sacramento who firmly believed abortion was immoral.

But a few weeks before the decision was to be announced, Justice Anthony M. Kennedy told his colleagues he had changed his mind -- not about the morality of abortion, but about the wisdom of overturning a long-standing constitutional right. In the end, he drafted an uneasy compromise with Justices Sandra Day O’Connor and David H. Souter that preserved the core right to choose abortion, while also giving lawmakers more authority to regulate it.

Last week, Kennedy was back at the center of the court’s abortion debate. And while the uneasy compromise still stands, this time he gave voice to his passion for protecting the “life of the unborn” in an opinion that upheld a national ban on a disputed midterm procedure that the National Right to Life Committee had first called “partial-birth” abortion.

Much of the focus last week was on the shift in the high court’s makeup that allowed conservatives to carry the day on abortion. The retirement of O’Connor in 2005 and her replacement by President Bush with Samuel A. Alito Jr. turned a 4-5 vote in a similar case in 2000 into Wednesday’s 5-4 decision in favor of limiting abortion.

But it was Kennedy who wrote the majority opinion, and unlike in 1992, his staunch opposition to abortion was fully on display. As his opinion makes clear, Kennedy views the issue through an antiabortion lens, not primarily as a matter of women’s rights or medical privacy. He spoke of the “infant” being carried by the mother, rather than the “fetus.” And he discounted the notion that the medical details of an abortion are the private business of doctors and patients rather than lawmakers.

Kennedy worded his opinion in such a way as to encourage new laws that would restrict doctors and discourage women from ending their pregnancies. “The government has a legitimate and substantial interest in preserving and promoting fetal life,” he wrote, and officials may regulate “the medical profession in order to promote respect for ... the life of the unborn.”

Kennedy, 70, remains something of an enigma.

Though a Reagan appointee, he has disappointed conservatives by casting decisive votes to strike down the death penalty for young murderers, to uphold gay rights and to throw out the Bush administration’s initial rules for military tribunals at Guantanamo Bay, Cuba. He spoke out strongly in recent years against long, mandatory prison terms for minor drug criminals, but he also cast a key vote to uphold California’s “three strikes and you’re out” law in a case that sent a petty criminal to prison for life for stealing CDs from a Kmart.

Earlier this month, Kennedy cheered the environmental movement when he supplied the deciding vote to reject the Bush administration’s policy on global warming and greenhouse gases.

“I have always seen him as a California Republican,” said Columbia University law professor Michael Dorf, once a clerk for Kennedy. Neither staunch conservative nor strident liberal, “he tends to have a moderating influence” on the court, Dorf said.

On abortion, however, Kennedy’s instincts are much closer to the court’s conservatives.

His opinion last week sets the stage for the next round in the abortion wars. Rather than forbid abortions by law, the idea would be to dissuade pregnant women from going ahead with an abortion. In several states, lawmakers have proposed bills to require doctors and their pregnant patients to study an ultrasound image of the developing fetus. Other proposals would require doctors to give their pregnant patients more detailed descriptions of the planned surgery.

Kennedy’s opinion says such laws would be constitutional even though they may intrude on the relationship between doctor and patient. “In a decision so fraught with emotional consequence, some doctors may prefer not to disclose precise details” of the surgery, he wrote. “Any number of patients facing imminent surgical procedures would prefer not to hear all the details.”

But their wishes must bow to the government’s wish to protect the unborn, he said. “It is precisely this lack of information concerning the way the fetus will be killed that is of legitimate concern to the State.... The State has an interest in ensuring so grave a choice is well informed,” he concluded.

Moreover, these grim details describing the surgery may “encourage some women to carry the infant to full term, thus reducing the absolute number” of such abortions, he added.

Several physicians who perform second-term abortions said they were troubled by the tone of the court’s opinion.

“It is patronizing. And for them to tell us how to practice medicine is dangerous,” said Dr. Nancy Stanwood, an obstetrics professor at the University of Rochester, who delivers babies and does abortions. “If I have a patient with a placental abruption, there can be life-threatening bleeding. The fastest way to deal with that is to empty the uterus. But I will have to stop and think: Could I go to jail for trying to stop this bleeding?”

The procedure banned by the new federal law is not used commonly, doctors say, but it is called for in some situations. In the early months of pregnancy, doctors use a suction tube for abortion. After about 12 weeks of pregnancy, however, the process becomes more complicated, and most physicians use some form of surgery.

During the fourth or fifth month, most doctors give the patient anesthesia and use instruments to remove the fetus in parts. This procedure is called “dilation and evacuation,” or D&E;, and it remains legal.

Some doctors say they try to remove the fetus intact to reduce the risk of injury, bleeding and infection. The skull must be crushed or drained to permit its removal. This is often called a “dilation and extraction,” or D&X.; Kennedy’s opinion calls it an “intact D&E.;” Under the federal law, the use of this procedure now puts doctors at risk of a criminal conviction and two years in prison.

“The underlying message I got from his opinion [is] that we doctors don’t have the best interest of our patients in mind,” said a physician who performs emergency abortions at a New York City hospital. She asked not to be named because of the controversy involving abortion. “We get some very difficult cases, and sometimes this procedure [D&X;] is medically necessary to save the health of the women.

“I find it very upsetting the justices didn’t listen to the doctors who testified to that effect,” she said, referring to court hearings on the law.

In Nebraska, Judge Richard Kopf held a two-week trial and heard testimony from nationally known experts on obstetrics and gynecology. He wrote a more than 400-page opinion and concluded the disputed abortion procedure is “sometimes necessary to preserve the health of a woman seeking an abortion.”

Kennedy’s opinion gave this evidence only a passing note and said there is “medical uncertainty” over the need for the disputed procedure.

Doctors who perform these midterm abortions say the new law may have little significance. That’s because physicians can give the tiny fetus an injection prior to the surgery that stops its heart. Medical experts have opposed the regular use of such injections because of the danger they could pose to the woman if the needle misses the target.

“This has put doctors in a defensive position, and most are planning on going to fetal injections,” said Dr. Eve Espey, a professor at the University of New Mexico and a Physicians for Reproductive Choice and Health board member.

“This will not stop any abortions from taking place,” said Stanwood. “We physicians will make some slight changes in our practice. An injection for the fetus adds another risk to woman’s health, and it means added time and money. But if that’s what’s necessary, that’s what we will do.”

david.savage@latimes.com