Roundup: Caroline Kennedy Seeks Clinton’s Senate Seat; Who Will Veto Arizona’s Anti-Choice Legislation Now?

Emily Douglas

Caroline Kennedy seeks Clinton's Senate seat; as Governor, Napolitano vetoed anti-choice bills, now what?; medication abortion likely to be approved in Italy; birth control to be available over-the-counter in London.

Caroline Kennedy Seeks Clinton’s Senate Seat

After a lifetime avoiding public office, Caroline Kennedy has announced her
intention to seek Sen. Hillary Clinton’s Senate seat.  Reports the Wall
Street Journal
: "Ms. Kennedy entered the political fray nearly a year ago
when she gave a strong endorsement to Barack Obama, whom she compared to her
father, in the closely fought Democratic primary. She was a major draw on the
campaign trail and in June was named to Mr. Obama’s vice-presidential search
committee, where she emerged as a crucial member of the vetting team." Yet Kennedy’s credentials are being widely
debated.  Reports
the New York Times
,

Aside from a 22-month, three-day-a-week stint as
director of strategic partnerships for the New York City schools, her
commitments generally involve nonprofit boards: the NAACP Legal Defense and
Educational Fund Inc., the American Ballet Theater,
the Commission on
Presidential Debates
and the John F. Kennedy
Library Foundation.

But friends and associates say that Ms. Kennedy, 51, is no dilettante, and
that her career is replete with examples of the kind of hands-on policy work
and behind-the-scenes maneuvering that could serve her well.

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Would Caroline Kennedy be the women’s rights leader in the Senate Hillary
Clinton was?  The Times notes that she "has
promoted such noncontroversial causes as patriotism, poetry and public service."  If she is to be a worthy successor to Sen. Clinton, her appetite for controversy – over issues that should be common sense! – may have to increase considerably.

As Governor, Napolitano Vetoed Anti-Choice Bills; What Now?

As Governor of Arizona, Janet Napolitano vetoed eight anti-choice bills, reports the Arizona
Capital-Times
, including a bill to ban certain forms of late-term abortion
(a so-called "partial birth" abortion ban), a parental consent bill, and a bill
that would require doctors to tell women more than 20 weeks pregnant that the
fetus has the capacity to feel pain.  But
now that she is headed for Washington
as President-Elect Obama’s Secretary of Homeland Security, anti-choice State Rep.
Andy Tobin says he hopes to introduce some of this legislation a second time,
when Secretary of State Jan Brewer, a Republican who will replace Napolitano, may not veto.  The
Capital-Times reports that the local Planned Parenthood is gearing up for the shift:

Michelle Steinberg, director of public policy for
Planned Parenthood of Arizona, said members of her organization are sad to see
Napolitano poised to leave.

"Governor Napolitano was a tremendous supporter, and it is hard to say
what will happen when she leaves," Steinberg said. "We hope Brewer
comes in with an open mind and we can find common ground."

Medication Abortion Likely to Be Approved in Italy,
Over Vatican’s
Protests

Despite protests from the Catholic Church, including the Church’s
recently-released statement on bioethics, Italy
is likely to see legal RU-486, medication abortion, accessible to women next
month, reports
the Times-Online
.  "RU486 would be
available only in hospitals, and doctors who disapproved had the option of
conscientious objection," the Times-Online reports.  Silvio Viale, a gynecologist, told the newspaper: "Worries
about the dangers are baseless: studies have proved it is safe."

Birth Control to Be Available Over-the-Counter in London

Pilot projects in London will attempt over-the-counter hormonal birth control access. Reports the BBC:

A spokeswoman for the Department of Health said: "We want to improve
women’s access to contraception and help reduce the number of
unintended pregnancies without undermining patient safety.

"Pilots like these will help to show whether supplying
contraception through pharmacies is effective in reducing unintended
pregnancies."

Analysis Law and Policy

Justice Kennedy’s Silence Speaks Volumes About His Apparent Feelings on Women’s Autonomy

Imani Gandy

Justice Anthony Kennedy’s obsession with human dignity has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

Last week’s decision in Whole Woman’s Health v. Hellerstedt was remarkable not just for what it did say—that two provisions in Texas’s omnibus anti-abortion law were unconstitutional—but for what it didn’t say, and who didn’t say it.

In the lead-up to the decision, many court watchers were deeply concerned that Justice Anthony Kennedy would side with the conservative wing of the court, and that his word about targeted restrictions of abortion providers would signal the death knell of reproductive rights. Although Kennedy came down on the winning side, his notable silence on the “dignity” of those affected by the law still speaks volumes about his apparent feelings on women’s autonomy. That’s because Kennedy’s obsession with human dignity, and where along the fault line of that human dignity various rights fall, has become a hallmark of his jurisprudence—except where reproductive rights are concerned.

His opinion on marriage equality in Obergefell v. Hodges, along with his prior opinions striking down sodomy laws in Lawrence v. Texas and the Defense of Marriage Act in United States v. Windsor, assured us that he recognizes the fundamental human rights and dignity of LGBTQ persons.

On the other hand, as my colleague Jessica Mason Pieklo noted, his concern in Schuette v. Coalition to Defend Affirmative Action about the dignity of the state, specifically the ballot initiative process, assured us that he is willing to sweep aside the dignity of those affected by Michigan’s affirmative action ban in favor of the “‘dignity’ of a ballot process steeped in racism.”

Meanwhile, in his majority opinion in June’s Fisher v. University of Texas, Kennedy upheld the constitutionality of the University of Texas’ affirmative action program, noting that it remained a challenge to this country’s education system “to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”

It is apparent that where Kennedy is concerned, dignity is the alpha and the omega. But when it came to one of the most important reproductive rights cases in decades, he was silent.

This is not entirely surprising: For Kennedy, the dignity granted to pregnant women, as evidenced by his opinions in Planned Parenthood v. Casey and Gonzales v. Carhart, has been steeped in gender-normative claptrap about abortion being a unique choice that has grave consequences for women, abortion providers’ souls, and the dignity of the fetus. And in Whole Woman’s Health, when Kennedy was given another chance to demonstrate to us that he does recognize the dignity of women as women, he froze.

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He didn’t write the majority opinion. He didn’t write a concurring opinion. He permitted Justice Stephen Breyer to base the most important articulation of abortion rights in decades on data. There was not so much as a callback to Kennedy’s flowery articulation of dignity in Casey, where he wrote that “personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education” are matters “involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.” (While Casey was a plurality opinion, various Court historians have pointed out that Kennedy himself wrote the above-quoted language.)

Of course, that dignity outlined in Casey is grounded in gender paternalism: Abortion, Kennedy continued, “is an act fraught with consequences for others: for the woman who must live with the implications of her decision; for the persons who perform and assist in the procedures for the spouse, family, and society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life; and, depending on one’s beliefs, for the life or potential life that is aborted.” Later, in Gonzales, Kennedy said that the Partial-Birth Abortion Ban “expresses respect for the dignity of human life,” with nothing about the dignity of the women affected by the ban.

And this time around, Kennedy’s silence in Whole Woman’s Health may have had to do with the facts of the case: Texas claimed that the provisions advanced public health and safety, and Whole Woman’s Health’s attorneys set about proving that claim to be false. Whole Woman’s Health was the sort of data-driven decision that did not strictly need excessive language about personal dignity and autonomy. As Breyer wrote, it was a simple matter of Texas advancing a reason for passing the restrictions without offering any proof: “We have found nothing in Texas’ record evidence that shows that, compared to prior law, the new law advanced Texas’ legitimate interest in protecting women’s health.”

In Justice Ruth Bader Ginsburg’s two-page concurrence, she succinctly put it, “Many medical procedures, including childbirth, are far more dangerous to patients, yet are not subject to ambulatory-surgical-center or hospital admitting-privileges requirements.”

“Targeted Regulation of Abortion Providers laws like H.B. 2 that ‘do little or nothing for health, but rather strew impediments to abortion,’ cannot survive judicial inspection,” she continued, hammering the point home.

So by silently signing on to the majority opinion, Kennedy may simply have been expressing that he wasn’t going to fall for the State of Texas’ efforts to undermine Casey’s undue burden standard through a mixture of half-truths about advancing public health and weak evidence supporting that claim.

Still, Kennedy had a perfect opportunity to complete the circle on his dignity jurisprudence and take it to its logical conclusion: that women, like everyone else, are individuals worthy of their own autonomy and rights. But he didn’t—whether due to his Catholic faith, a deep aversion to abortion in general, or because, as David S. Cohen aptly put it, “[i]n Justice Kennedy’s gendered world, a woman needs … state protection because a true mother—an ideal mother—would not kill her child.”

As I wrote last year in the wake of Kennedy’s majority opinion in Obergefell, “according to [Kennedy’s] perverse simulacrum of dignity, abortion rights usurp the dignity of motherhood (which is the only dignity that matters when it comes to women) insofar as it prevents women from fulfilling their rightful roles as mothers and caregivers. Women have an innate need to nurture, so the argument goes, and abortion undermines that right.”

This version of dignity fits neatly into Kennedy’s “gendered world.” But falls short when compared to jurists internationally,  who have pointed out that dignity plays a central role in reproductive rights jurisprudence.

In Casey itself, for example, retired Justice John Paul Stevens—who, perhaps not coincidentally, attended the announcement of the Whole Woman’s Health decision at the Supreme Court—wrote that whether or not to terminate a pregnancy is a “matter of conscience,” and that “[t]he authority to make such traumatic and yet empowering decisions is an element of basic human dignity.”

And in a 1988 landmark decision from the Supreme Court of Canada, Justice Bertha Wilson indicated in her concurring opinion that “respect for human dignity” was key to the discussion of access to abortion because “the right to make fundamental personal decision without interference from the state” was central to human dignity and any reading of the Canadian Charter of Rights and Freedoms 1982, which is essentially Canada’s Bill of Rights.

The case was R. v. Morgentaler, in which the Supreme Court of Canada found that a provision in the criminal code that required abortions to be performed only at an accredited hospital with the proper certification of approval from the hospital’s therapeutic abortion committee violated the Canadian Constitution. (Therapeutic abortion committees were almost always comprised of men who would decide whether an abortion fit within the exception to the criminal offense of performing an abortion.)

In other countries, too, “human dignity” has been a key component in discussion about abortion rights. The German Federal Constitutional Court explicitly recognized that access to abortion was required by “the human dignity of the pregnant woman, her… right to life and physical integrity, and her right of personality.” The Supreme Court of Brazil relied on the notion of human dignity to explain that requiring a person to carry an anencephalic fetus to term caused “violence to human dignity.” The Colombian Constitutional Court relied upon concerns about human dignity to strike down abortion prohibition in instances where the pregnancy is the result of rape, involves a nonviable fetus, or a threat to the woman’s life or health.

Certainly, abortion rights are still severely restricted in some of the above-mentioned countries, and elsewhere throughout the world. Nevertheless, there is strong national and international precedent for locating abortion rights in the square of human dignity.

And where else would they be located? If dignity is all about permitting people to make decisions of fundamental personal importance, and it turns out, as it did with Texas, that politicians have thrown “women’s health and safety” smoke pellets to obscure the true purpose of laws like HB 2—to ban abortion entirely—where’s the dignity in that?

Perhaps I’m being too grumpy. Perhaps I should just take the win—and it is an important win that will shape abortion rights for a generation—and shut my trap. But I want more from Kennedy. I want him to demonstrate that he’s not a hopelessly patriarchal figure who has icky feelings when it comes to abortion. I want him to recognize that some women have abortions and it’s not the worst decision they’ve ever made or the worst thing that ever happened to him. I want him to recognize that women are people who deserve dignity irrespective of their choices regarding whether and when to become a mother. And, ultimately, I want him to write about a woman’s right to choose using the same flowery language that he uses to discuss LGBTQ rights and the dignity of LGBTQ people.  He could have done so here.

Forcing the closure of clinics based on empty promises of advancing public health is an affront to the basic dignity of women. Not only do such lies—and they are lies, as evidenced by the myriad anti-choice Texan politicians who have come right out and said that passing HB 2 was about closing clinics and making abortion inaccessible—operate to deprive women of the dignity to choose whether to carry a pregnancy to term, they also presume that the American public is too stupid to truly grasp what’s going on.

And that is quintessentially undignified.

Analysis Law and Policy

For Justice Kennedy, It’s the Dignity of Gay Couples Versus the Dignity of the State

Jessica Mason Pieklo

At the end of Tuesday's oral arguments it wasn't clear whether Justice Kennedy would side completely with marriage equality advocates.

Michigan voters in 2006 approved Proposal 2, a measure that told the state’s public colleges and universities they could no longer “grant preferential treatment” on the basis of race in their admissions policies. Last summer, the Supreme Court overruled a federal appeals court and decades of jurisprudence and ruled Prop 2 was constitutional in Schuette v. Coalition to Defend Affirmative Action.

“This case is not about how the debate about racial preferences should be resolved,” wrote Justice Anthony Kennedy for the majority in Schuette. “It is about who may resolve it.” And the “who,” in the balance between citizen voter initiatives and the Court, would tilt in favor of the citizens.

Fast forward to almost a year later: If there is a way for the Roberts Court to screw up a seemingly likely win for marriage equality, it will be because of Schuette.

In Obergefell v. Hodges, the marriage equality case, there are two legal questions before the Court. The first is the marriage question: whether states can refuse to grant marriage licenses to same-sex couples. The second is the recognition question: if states that ban same-sex marriages must recognize legally performed marriages from elsewhere.

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But if those were the legal questions before the Court, the political question weighing on the minds of the conservative justices during Tuesday’s oral arguments was evidently “who gets to decide” what the definition of marriage should be.

Justice John Roberts told Mary Bonauto, one of the attorneys representing the couples, that if the Court rules that states must issue marriage licenses to same-sex couples, it would “redefine” marriage, noting that “every definition I looked up until about a dozen years ago” defined the institution as between heterosexual couples. Meanwhile Justice Antonin Scalia sniffed, “You are asking us to decide for this society [whether to allow same-sex marriage] when no other state has had [same-sex marriage] until 2001?”

Justice Anthony Kennedy picked up Justice Roberts’ historical concern for the institution of marriage, declaring that the definition of marriage as a union between one man and one woman had been around for millennia. He then pivoted to Justice Scalia’s point, noting that it was only recently that the Court ruled Texas could not criminalize sex acts between consenting adults like sodomy bans. The point, Kennedy pressed, was that “it’s very difficult for the Court to say we know better.”

That was just the kind of statement from Kennedy marriage equality opponents were hoping for: a signal that the justice was at least considering upholding the state marriage bans on similar grounds to Schuette by deferring to the will of the people rather than the judgment of the Court. In Schuette, Kennedy wrote, “Our constitutional system embraces … the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.” The question of race, and the role of racial preferences may be a difficult one, Kennedy reasoned, but voters should be trusted to be up to the task to engage in that debate themselves.

This was the theme purposefully repeated by opponents of same-sex marriage Tuesday. In their brief to the Supreme Court, attorneys for the State of Michigan quoted heavily from Kennedy’s opinion in Schuette, arguing that it was up to the people, and not the Court, to evolve on the issue of same-sex marriage. Pundits and lawyers widely believe Kennedy to be the swing vote on marriage equality, in large part because of his opinion last summer in United States v. Windsor that struck the federal definition of marriage in the Defense of Marriage Act (DOMA) as between one man and one woman. In that case, Justice Kennedy wrote emotionally about the respect same-sex couples and their families deserve, and the animus expressed in laws intended to keep them out of the institution of marriage.

Kennedy’s language in Windsor may have been heartening. Still, given his opinion and the outcome of Schuette—where, again, the Court left it up to citizens to decide who gets full civil rights and who does not—it seems increasingly less likely that he will rule to strike down state-level same-sex marriage bans. That is, unless you factor in race.

In order to support Prop 2 in Schuette and sweep aside decades of constitutional jurisprudence that protected the use of race in some policy decisions in the name of advancing equality, Kennedy and the rest of the justices in the majority determined that Prop 2 was passed without “racial animus.” In other words, the Court concluded, Michigan voters decided to ban affirmative action plans for some reason other than an intent to discriminate against racial minorities.

It is not surprising that a Court that gutted the Voting Rights Act on the grounds that the country was “post-racial”—and therefore voting protections were unnecessary—would believe that a ban on affirmative action policies could be based on anything other than racial bias. Kennedy even insisted that Schuette was not about the wisdom or legality of race-based admissions policies, but rather whether “the courts may not disempower the voters from choosing which path to follow.”

Those declarations were put to the test in the marriage equality cases Tuesday. Conservatives opposed to marriage equality played up as best they could Kennedy’s anti-federalism in Schuette, making their case all about the voters evolving on the issue of same-sex marriage through the democratic process. Opponents of the marriage bans argued forcefully for the dignity of their clients, relying both on the law and personal anecdotes to drive home the fact that people’s lives and families were before the Court.

So which path will Kennedy take?

Despite being a reliable member of the Court’s conservative voting bloc, Justice Kennedy has authored the Court’s most recent and expansive rulings on gay rights. And they haven’t been terrible. Under his guidance the Court has struck sodomy laws and parts of DOMA, as well as beginning to articulate a line of jurisprudence that recognizes the fundamental human rights and dignity of LGBT persons. In fact, during his confirmation hearing Kennedy, a President Reagan appointee, articulated during his confirmation process what pundits named the “dignity doctrine.” When asked to describe what concepts are protected under the Constitution’s liberty guarantee, Kennedy responded: “A very abbreviated list of the considerations are: the essentials of the right to human dignity, the injury to the person, the harm to the person, the anguish to the person, the inability of the person to manifest his or her own personality, the inability of a person to obtain his or her own self-fulfillment, the inability of a person to reach his or her own potential.”

Kennedy’s dignity doctrine should spell good news for marriage equality supporters. During Tuesday’s arguments Kennedy expressed real skepticism at the state’s justifications for same-sex marriage bans. And as in Windsor, it was clear that the dignity of same-sex couples and their families matters to him.

But Justice Kennedy also has real concerns over the “dignity” of the state and the ballot initiative process. This much was clear in Schuette, as was the fact that Kennedy picks and chooses to whom this dignity doctrine applies and who it does not. In Schuette, the dignity of those impacted by Prop 2 were brushed aside for the “dignity” of a ballot process steeped in racism. And that may be enough for conservatives to reign in a broad ruling from the Court in favor of a narrower one that refuses to mandate states issue marriage licenses to same-sex couples but requires states to recognize marriages of same-sex couples legally married elsewhere. Justices Roberts and Antonin Scalia searched for this compromise position, leaning heavily on the rhetoric of Schuette to try and bring Kennedy to their side. At the end of the arguments, it wasn’t at all clear whether they had convinced Justice Kennedy to sign on.

If they do, and the Court issues a split or more limited decision, then we’ll know Kennedy tried to balance his anti-federalism with his belief in the dignity of LGBT persons. But if the conservatives on the Roberts Court are not successful and Kennedy does side with the liberal wing to support marriage equality broadly, then it will be incumbent on progressives to not just talk about Kennedy’s improving record on the dignity of LGBT persons, but also his abysmal record on the dignity of non-whites.