Abortion, Justice Kennedy, and Judge Kavanaugh (CRS Report for Congress)
| Release Date |
Aug. 8, 2018 |
| Report Number |
LSB10185 |
| Report Type |
Legal Sidebar |
| Authors |
Jon O. Shimabukuro |
| Source Agency |
Congressional Research Service |
Summary:
In 1992, nearly 20 years after it concluded in Roe v. Wade that the Constitution protects a woman’s
decision to terminate her pregnancy, the Supreme Court in Planned Parenthood of Southeastern
Pennsylvania v. Casey adopted a new standard for reviewing the constitutionality of abortion regulations.
Under this new standard, announced in a joint opinion written by Justices Sandra Day O’Connor, Anthony
Kennedy, and David Souter, a reviewing court must consider whether an abortion regulation imposes an
“undue burden” on a woman’s ability to have an abortion before fetal viability, the gestational point when
a fetus is able to live outside the mother’s womb with or without artificial assistance. In the years that
have followed, the Court has applied and further explained the undue burden standard in several
subsequent cases. With the recent retirement of the last remaining Justice on the Court from the Casey
plurality, questions have arisen about the future of the Court’s abortion jurisprudence.
This Legal Sidebar addresses these questions by first reviewing the undue burden standard and generally
discussing Justice Kennedy’s views on the standard in the case law that has developed since Casey. The
Sidebar then, in light of President Trump’s July 9, 2018 nomination of Judge Brett Kavanaugh to replace
Justice Kennedy, examines Judge Kavanaugh’s only substantive abortion opinion: a dissent in the 2017
case from the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit), Garza v. Hargan.
Finally, as lower courts continue to apply the undue burden standard to new abortion regulations, the
Sidebar concludes by noting some of the abortion cases that the Supreme Court could possibly review in
the near future.
