Reading Justice Anthony Kennedy's opinion in the partial birth abortion decision, just handed down, can be tough going even for a recovering lawyer like me. While he came out on the right side, i.e., banning the horrific practice, he justified his majority opinion through a close reading of and maneuvering through the labyrinth of the jurisprudence established in Roe v. Wade and Doe v. Bolton.
Contrast Kennedy's majority opinion with the short, concise concurring opinion of Justice Clarence Thomas (Justice Scalia concurring). While joining the Supreme Court's opinion "because it accurately applies current jurisprudence," Thomas hastens "to reiterate my view that the Court's abortion jurisprudence [citations omitted] has no basis in the Constitution." Period. End of story. Unfortunately, Chief Justice Roberts and Justice Alito were no-shows on this concurring opinion.
Notwithstanding that Justice Kennedy's opinion remained firmly grounded in the deformities of Roe and its progeny, the man deserves credit for an excruciating, factual, and grueling statement of the underlying facts of the case, specifically the horror which is abortion and partial birth abortion. He does not mince words.
Read the entire article on the American Spectator website (new window will open).