But in some of the same cases, he voted to preserve the right to abortion. The Casey decision, which he helped write, retained much of Roe v. Wade. He repeatedly reinforced that abortion was a protected liberty, and at times, he highlighted women’s interests in equal treatment and autonomy. And in 2016, Kennedy joined an opinion that bolstered abortion rights by concluding that abortion is generally safe, and requiring states to show that any restrictions helped women in fact, not theory.
Kennedy worried about the dignity accorded to both fetuses and women, and he hoped that the Court could fairly weigh the two in each individual case. The result was a jurisprudence that satisfied neither pro-choice nor pro-life Americans. Indeed, after his retirement, liberals reminded one another that Kennedy was never really one of them. Abortion opponents celebrated the exit of a “pro-abortion” justice.
By pleasing no one, Kennedy left the country with a body of law that might reflect many Americans’ ambivalence about abortion. While the number of those who identify as pro-choice or pro-life has varied considerably over time, most Americans seem to want the same thing: for abortion to be legal, but (perhaps even quite heavily) regulated—a compromise Kennedy helped create.
The president’s allies want no such compromise. On the campaign trail, President Trump pledged to nominate “pro-life judges” who would overturn Roe. With Kennedy no longer on the bench and with a Republican majority in the Senate, there is little stopping the confirmation of a judge to cast that deciding vote. Liberals have bemoaned Kennedy’s departure with reason—the possibility that the Court will undo Roe has become a probability.
Yet in other ways, the future of abortion jurisprudence has become harder to predict with Kennedy gone. It is clear that anti-abortion advocates will ask the Court to overrule Roe—and soon. But so many of the strategies used by both sides reflected Kennedy’s beliefs and preferences. Abortion opponents had prioritized fetal-pain laws that built on Kennedy’s decision on partial-birth abortion. Relying on his opinions on post-abortion regret, other abortion foes promoted laws said to protect women from physical and psychological injury. We do not know if a sitting justice will become the new swing vote on abortion or if Trump will accidentally select the next Anthony Kennedy. And we have no idea which arguments will resonate with a reconfigured Court.
Among anti-abortion advocates, there is likely to be a heated debate about how to steer a post-Kennedy Court toward overturning Roe. Mainstream groups may wish to continue the incremental attack that is already under way. Proponents of personhood laws may champion another approach, as might those who have favored laws outlawing all abortions relatively early in pregnancy. Abortion opponents have introduced statutes that directly contradict Roe and Casey, such as an Iowa law banning abortion when doctors can detect a fetal heartbeat—as early as the sixth week of pregnancy. But quickly taking that legislation to the Court could be risky. Would five justices vote immediately to uphold such a law? Judges convinced that Roe is wrong might relish this opportunity. Or the new conservative majority might find such a change too abrupt—or think that jettisoning Roe so fast would appear political.