Gonzales v. Carhart: What Hath Kennedy Wrought?

By Hadley P. Arkes
June 03, 2007
Once more the question echoes: What hath Justice Kennedy wrought? This time in the decision upholding the federal bill on partial-birth abortion. My friends in the Federalist Society are likely to know of my own absorbing interest in this issue over the last twenty years, for I have been identified with the strategy of “incrementalism” or taking “the most modest fi rst steps” in legislating on abortion. The federal bill on partial-birth abortion sprung directly from that strategy, but as the work of Douglas Johnson at National Right to Life. That bill had been preceded by the Born-Alive Infants’ Protection Act (2002), the Act that cast the protections of the law on the child who survived an abortion. In the aftermath of Justice Kennedy’s opinion for the Court in Gonzales v. Carhart, that first legislative act promises to become ever more important as the main lever in the hands of the government in seeking to extend the protections of the law to children in the womb. But that point becomes clearer as one looks closely at the decision that Justice Kennedy has shaped for the Court in Carhart. And Kennedy’s moves may in turn become clearer in their import when they are set against the kind of decision I had been mapping out in my own hopes for the case, in the pieces I wrote as the case made its way to the Supreme Court....