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7 Rutgers J. L. & Religion [1] (2005-2006)

handle is hein.journals/rjlr7 and id is 1 raw text is: Roe v. Wade: A Scandal Upon The Court Part I: The Unsettling of Roe v. Wade By Philip A. Rafferty* [1] Mainstream constitutional thinking (i.e., pro-Roe thinking) is that Roe v. Wade constitutes settled law.' Settled by whom? By Justice Kennedy, who voted to overrule Roe in the 1989, 5-4 Webster v. Reprod. Health Svcs.2 decision upholding Roe, and who then - and without giving any intelligible explanation for his turnabout here - voted to uphold Roe in the 1992, 5-4 Planned Parenthood of Southeastern Pennsylvania v. Casey decision?3 What brought on this about-face by Kennedy? While Chief Justice Rehnquist was working on his majority opinion in Casey (to which Kennedy had committed to joining), Roe author Justice Blackmun spoke privately with Kennedy and showed to Kennedy letters that Blackmun had received from women who spoke of how the right to choose abortion had been important in their lives.4 [2] Kennedy does not, of course, believe that judicial fan mail can serve as a basis for constitutional interpretation (which is not to say that Kennedy did not succumb to Blackmun's highly unethical attempt to have him change his vote here). Yet, our constitutional community * The author is a criminal defense lawyer in private practice in Los Angeles County, California. He is grateful to Professor Sir John Baker of Cambridge University for his help in transcribing and translating the texts in the appendices. 1 Roe v. Wade, 410 U.S. 113 (1973). 2 Webster v. Reprod. Health Svcs., 492 U.S. 490 (1989). 3 Planned Parenthood v. Casey, 505 U.S. 833, 833-34 (1992). 4 See David G. Savage, Roe's Author Found Himself a Bystander in '92 Abortion Fight, L.A. TIMES, Mar. 4, 2004, at A25. See also LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 203 (2005)

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