What exactly was the procedure that the law, the Partial-Birth Abortion Ban Act of 2003, sought to prohibit, the justices wanted to know. When, if ever, was the procedure necessary? What would be the impact of banning it? What alternatives were available to women seeking second-trimester abortions and to doctors performing them?...Since Justice O'Connor was the fifth vote in the previous "partial-birth" abortion case, we're especially interested in any cues that might have come from Justice Alito, but he said nothing at all. Scalia was "unusually disengaged." Chief Justice Roberts was active:
Justice Kennedy’s questioning suggested that he had not made up his mind, despite his strongly worded dissenting opinion when the court struck down Nebraska’s version of the federal law six years ago, and despite his obvious distaste for the procedure at issue. Instead, his questions suggested that he remained open to persuasion that the law placed doctors in legal jeopardy and imposed an unconstitutional burden on their patients’ right to terminate their pregnancies.
One example was his response to the assertion by Solicitor General Paul D. Clement that it was never necessary for doctors to use the banned procedure because a more common procedure, one not covered by the statute, “has been well tested and works every single time as a way to terminate the pregnancy.”
Justice Kennedy responded: “Well, but there is a risk if the uterine wall is compromised by cancer or some forms of pre-eclampsia and it’s very thin. There’s a risk of being punctured.”
At times, he appeared to be trying to bolster the defense of the statute by the solicitor general. At other times, the chief justice appeared eager to find differences between the federal law and the Nebraska law. Differences in the way the state and federal laws defined the procedure could be the basis for a decision that upholds the federal law without disavowing a recent precedent.That sounds as though Roberts was looking for a minimalist theory for upholding the federal law, while perhaps Kennedy was looking for a minimalist way to provide the fifth vote for striking it down.
What Kennedy does is important, and I think the Democrats acquisition of control of the Senate makes it easier for him to assume the position previously occupied by Justice O'Connor and vote against the law. There will be outcry against Kennedy, but those who are opposed to abortion rights can no longer hope for new openings on the Court to fill with solid conservatives. With the new Senate, any new Justices are going to be judges who operate much like O'Connor and Kennedy.