Category: Privacy

Cline on the Constitution Privacy of Cell phone data

Cline on the Constitution Privacy of Cell phone data

I am back with a new segment of Cline on the Constitution.

 

Took a little hiatus to explore the Mississippi via Paddle Boat.  Great trip.

 

I then monitored the resumption of hearings on Justice Kavanaugh. Much has been discussed about Due Process and the Presumption of Innocence.  I won’t repeat the various arguments.

 

But a couple of the images did stick with me.  The first was of a cadre of the clueless actually clawing at the doors of the Supreme Court.  I was put in the mind of an army of the undead, like a movie ready made for the approaching Halloween called “Zombies and the Law”.

 

The second image was of Senators ducking out of the hearing to give fiery speeches to the Mob pressing in on the steps of the Capitol.

 

It reminded me of Brutus addressing the Mob after joining with other senators in the assassination of Caesar. These Senators rushing to the microphones after engaging in their own assassination (of character) seemed unaware of the lesson that the Mob may very well turn on them next.  As they did on Brutus and the others when Anthony, in one of the most famous speeches in Western literature, put in their mind where their own self-interest lay.  As Anthony put it after teasing the Mob with the wealth they might gain from dead Caesar’s will: “Now let it work. Mischief, thou art afoot, take thou what course thou wilt!”

 

It didn’t end well for Brutus and his henchmen. Not may it for those Senators.

 

But back to work,

 

Justice Kavanaugh is still in his early fifties, a virtual baby in Supreme Court Justice years.  He and the other youngster, Justice Gorsuch, also in early fifties, may be the closest thing we can hope for as far as a youth movement on the Court that may be prepared to align Constitutional interpretation with modern technology.

 

Let’s talk about that.

 

In my last segment, I lay some groundwork for a direction I believe the Supreme court may take to find its way out of the Katz case “expectation of privacy” quicksand in which they are mired.

 

As you will recall, it was the Katz case which found that a listening device attached to the outside of a telephone booth to capture the conversation of a number’s runner violated a person’s “reasonable expectation of privacy” and therefore, his rights against illegal search and seizure under the Fourth Amendment.  The “expectation of privacy” test was a creation of the Court. And has been in use for fifty years or so.

 

My discussion was based on Justice Scalia’s attempt in U.S. v Jones (government surreptitiously attached GPS device to suspect’s car) to “return to the future” in Fourth Amendment analysis by reintroducing the concept of “property rights.”  The “trespass” to property rights as a basic underpinning for the Fourth Amendment was in turn discussed by individual justices in last term’s seminal case on privacy rights, Carpenter v. United States.

 

Carpenter was suspected of committing a string of robberies in Detroit.  The FBI used a court order (not a Search Warrant) similar to a subpoena to gain access to data about his cell phone use from service providers.  Congress had, through legislation, prescribed this method for obtaining telephone records.  They had attempted to balance the interests of privacy with the need of authorities to conduct investigations. What Congress is supposed to do.

 

The Feds were able to obtain 13,000 of Carpenter’s location points over a 127-day period.  He was convicted. He appealed contending his rights under the Fourth Amendment were violated.  The appellate court rejected his appeal finding he had no “expectation of privacy” in the data because he had willingly given the information to his carriers.

 

And that is the rub. The “expectation of privacy” test becomes problematical when the information is shared with others.  If you willingly give information to strangers how can you say you have a reasonable expectation of privacy?

 

The Fourth Amendment protects the rights of citizens to be secure from unreasonable searches of “. . . their persons, houses, papers and effects.” As I have noted before, the crafters of the Constitution and the Bill of Rights were master wordsmiths. It pays to closely consider the words they used.

 

On its face those words protect a personal right (“their”) and a citizen’s physical integrity (“person”) and his or her property, (“houses, papers and effects.”) But what of location data continuously transmitted to a third-party carrier from one’s cell phone?

 

The Carpenter opinion, crafted by Chief Justice Roberts, begins by noting that in our nation of 326 million people there are 396 million cell phone users.  It acknowledges “While individuals regularly leave their vehicles, they compulsively carry cell phones with them all the time.  A cell phone faithfully follows its owner beyond public thoroughfares and into private residences, doctor’s offices, political headquarters and other potentially revealing locales. . . Nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.”

 

The court then dramatically observed, “Accordingly, when the Government tracks the location of a cell phone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phones’ user.” Furthermore, it can go back in time to retrace a person’s location for as long as the carrier retains the records, normally five years.

 

The constitutional problem, as noted above, is that none of the words of the Fourth Amendment applies. Neither does the “expectation of privacy” test as it had been interpreted prior to the Carpenter decision.  The information sought by the FBI was in the possession of a third party.  It had been willingly given over.  It is not property.

 

Or is it?

 

Chief Justice Roberts did acknowledge what Justice Scalia had argued in Jones.

 

“For much of our history,” Justice Roberts wrote, “Fourth Amendment search doctrine was ‘tied to common-law trespass’ and focused on whether the Government was physically intruding on a constitutionally protected area.” But, he added, the Katz case held that the Fourth Amendment protected the privacy of “people, not places.”

 

Chief Justice Roberts opinion went on to conclude that the location data was protected under the “expectation of privacy” doctrine.  But it was a struggle for him to arrive at such a conclusion.  Two Supreme court cases from the modern era had held information in the possession of a third party was not covered by the “expectation of privacy” test.  These had to be overruled.

 

And he even went to find that the order obtained pursuant to the legislation passed by Congress was not based upon the Probable Cause standard required by the Fourth Amendment.

 

Four separate and strong dissents were penned by Justices Kennedy, Thomas, Alito and Gorsuch. And in these opinions the constitutional basis of the Katz “expectation of privacy” test is challenged and a different pathway to the future is hinted at.

 

Many of the Justices expressed concern over how the law will keep abreast of rapidly changing technology.

 

Justice Roberts quoted a Justice from early in the last century who, when considering innovations in airplanes and radios, wrote the Court must tread carefully to ensure they do not “embarrass the future.”

 

Justice Kennedy, however, in response said, “perhaps more important, those future developments are no basis upon which to resolve this case. . . the court risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.  The judicial caution, prudent in most cases, is imperative in this one.”

 

Justice Kennedy went on to argue the traditional position that there is no “expectation of privacy” in material in the hands of third parties.

 

Both Justice Kennedy and Alito worried over the impact on investigations of corruption and Terrorism. They said, “The court’s new and uncarted course will inhibit law enforcement and keep defendants and judges guessing for years to come.”

 

And Kennedy noted, “this case should be resolved by interpreting accepted property principles as the baseline for reasonable expectation of privacy.”

 

Justice Clarence Thomas, in a brilliant opinion, did an exhaustive historical analysis of the Fourth Amendment and called for the overruling of Katz test. “Until we confront the problems with this test, Katz will continue to distort Fourth Amendment jurisprudence.” He went on to relate how Jurists and commentators, have called the Katz cases, “an unpredictable jumble,” a mass of contradictions and obscurities;” “all over the map,” “riddled with inconsistency and incoherence,” among other descriptions.

 

It is also historically significant, he pointed out, that the Katz decision was issued in the interim between the Griswold case in 1965, the first case recognizing an implied Right to Privacy and Roe v Wade in 1973 extending that newly recognized right to abortion.  Privacy was, as Justice Thomas noted, “the organizing constitutional idea of 1960s and 1970s.” He went on to say, however, that “The organizing constitutional idea of the founding era, by contrast, was property.”

 

He and the other justices criticized how Judges frequently use the looseness of the Katz test to impose their own views on society.  The cases, Thomas wrote “bear the hallmarks of subjective policymaking instead of neutral legal decision-making.” The application of the Katz test about societies expectations of privacy, “bear an uncanny resemblance to those expectations that this Court considers reasonable.”  He said, “self-awareness of eminent reasonableness’ is not really a substitute for democratic election.”  In other words, the Court once again walks into the trap of substituting their own personal views instead of deferring to the democratic process.

 

Justice Alito elaborated on this theme by criticizing Robert’s opinion and its easy willingness to emboss new standards on the subpoena process.

 

“By departing from these fundamental principles, the Court destabilizes long-established Fourth Amendment doctrine. We will be making repairs – or picking up the pieces- for a long time to come.”

 

Going all the way back to the Judiciary act of 1789 Justice Alito traced the origins of the subpoena power and established that never before had it been subject to Fourth Amendment analysis.  It was never about the government trespassing on property.  Rather, it was about the ability to investigate crime by requiring the production of records.

 

“The desire to make a statement about privacy in the digital age does not justify the consequences that today’s decision is likely to produce.”

 

In sum, Justice’s Kennedy, Thomas, Alito, and Gorsuch each in separate dissenting opinions criticized the use of the Katz case and the “expectation of privacy” test. They either argued that it does not apply or should be dispensed with completely.  And each returned to the original “property/trespass” based foundations of the Fourth Amendment.

 

But in the last segment it was Justice Gorsuch who may have pointed a possible way to the future.

 

He argued that data even in the hands of a third party like a carrier can still be “your” property. He detailed all the different property interests one can have in property held, even voluntarily, by another and that your Fourth Amendment protections can apply, not to sustain an amorphous “expectation of privacy”, but as a property interest which is protected from government intrusion.

 

His opinion provides a road map away from the monster Katz “expectation of privacy” test and a way forward.

 

By looking back.

 

We will have to wait for future decisions to see if the court follows his direction.

 

For more Cline on the Constitution and other writings by Phil Cline, visit philcline.com

 

 

 

 

 

 

 

 

 

 

Privacy and Property

Privacy and Property

This week’s segment of Cline on the Constitution

 

Privacy and Property

 

One momentous decision of the Supreme Court’s last term involved cell-phone privacy.

 

In Carpenter vs. U.S., penned by Chief Justice Roberts, the Court found that data collected from a cell phone that pinpointed a suspected robber’s movements over 127 days involving 12,898 location points violated the target’s privacy rights.  It found that he had “an expectation of privacy” in the data on his cell phone.

 

While most of us assume the information on our cell phones is private, legally it has been far from clear that the protection from governmental intrusion is of constitutional dimension. The Court regularly employs an “expectation of privacy” test. Essentially, a person must have a “objectively reasonable” expectation of privacy in the area to be searched.

 

The “expectation of privacy” test was derived from the landmark case Katz vs. U.S. The court found it that case that a listening device attached to the outside of a telephone booth violated the Fourth Amendment. (Most of my students have never seen a telephone booth. I show them a picture) The court ruled that the Fourth Amendment prohibition against unreasonable search and seizure was violated since the occupant of the phone booth had a “reasonable expectation of privacy.”

 

In order to reach the holding in Carpenter, however, the Roberts court had to ignore two of its own precedents that held there was no “expectation of privacy” in records held by a third party.  In United States v Miller, the court held there was no expectation of privacy in financial records held by a bank and in United States vs. Smith it held there was no expectation of privacy in records of telephone numbers conveyed to the telephone company.  So, can we reasonably say we have an expectation of privacy when our cell phone data is held by a third party, i.e. the entities that operate the servers over which the data flows or is stored.

 

The Carpenter case had to stretch the rationale for the decision to fit the Expectation of Privacy doctrine. And the way it did so gives us a potential roadmap for how the law will develop in the future.  Given the interdependence of modern technology, the Expectation of Privacy test is either going to have be refined or replaced.

 

I will go into more detail on the Carpenter case in my next blog, but I thought it might be worthwhile to explore how the Court was able to arrive at the decision it did.  It gives us a hint of where the jurisprudence might go.

 

One of the cases the Roberts court cited repeatedly was a decision written by the brilliant Justice Antonin Scalia. The case was actually discussed by the nominee in the Kavanaugh hearings though it went over every senator’s head with exception of Senator Lee from Utah.

 

The case was U.S. vs, Jones. The government attached a GPS device to a car and left it on beyond the time authorized by a warrant.  Scalia, to the consternation of the justices in the minority found it was unnecessary to consider the Katz “Expectation of Privacy” test because the government’s action was a trespass against the Property rights of the car owner.

 

And here we pause. Property Rights?  Are they important anymore?  We might want to pay attention since the Far Left has unleased the dogs of socialism.

 

The Fourth Amendment protects “The right of the People to be secure in their persons, houses, papers and effects against unreasonable search and seizure.”  Note it says nothing about privacy rights; what it does talk about are property rights: “houses, papers and effects.” In Scalia’s historical analysis he argued that the framers plainly included this language to protect against the trespass of these property rights by the government.

 

One more example:  The Fifth Amendment provides that no person shall be “deprived of life, liberty, orproperty, without Due Process of Law”. As originally written the provision was a restriction on only the Federal Government.  The Fourteenth Amendment, passed after the Civil War, made it applicable to the States.  “Nor shall any State deprive any person of life, liberty, or property without Due Process of Law.”

 

Were property rights put on a par with rights to life and liberty by the drafters of the Constitution?  In contemporary society, a premium is put on protecting individual rights and liberties.  Okay.  But did the framers, in their wise and prudent efforts to protect us from governmental oppression, know something we have lost sight of regarding the rights to property?

 

Let’s drill down just a little further.

 

John Locke and the natural rights theory, that is that our rights are given us by our maker not granted to us by a government, led to the explicit protection of unenumerated rights in the Ninth Amendment.  And one of those unenumerated rights is the Right of Privacy which we hold so dear today. Privacy encompasses a broad range of “rights” such as abortion, marriage and, now, Cell phone privacy.  Though we traditionally trace the right of privacy to decisions written by the likes of Justice Douglas in the sixties, ironically, the first time the term was used by the Supreme Court was a business/contract case circa 1938.

 

Besides John Locke there were actually two other early influencers on Hamilton, Jefferson, Madison, and John Adams.

 

And now for some concepts I brazenly lifted from studies on the philosophical underpinnings of the Constitution.  Go ahead and read it.  It won’t hurt.

 

Thomas Hobbes (1588-1679) believed Man is most actuated by self-preservation and, therefore, seeks power in all its forms.  Yet Man is not a beast in the jungle and realizes in anarchy only brute force prevails. Man, therefore, surrenders some of his rights to government, in return for protection and order. He, thereby, insures himself a society where cunning rather than strength is the essence.

 

Hobbes’s attitude toward the nature of Man coincided with the old Puritan doctrine of Man’s depravity and justified the “property consciousness of an acquisitive young society.”  Those same utterances can be traced to the Federalism constructs of Alexander Hamilton.

 

John Locke (1632-1704) differed with Hobbes on many things, though they shared the view of the perverse and predatory nature of Man and agreed that government was necessary to prevent anarchy. The form the government should take was where they differed. Like Hobbes, Locke believed that to curb man’s perversity of his own nature, man creates government and in so doing willingly surrenders some measure of his natural rights in return for security for person and property.  However, man does not sign over a blank check.  To Locke, government is a function of the governed, existing by their consent and responsible to them for its actions.  Government is not a Sovereign but rather a Fiduciary, a property concept.

 

All men, Locke said, have a natural instinct for life, liberty, and property.  The first two of those Man holds in common with beasts, but the third, property, is peculiar to man alone. It is in the view of Locke and others justified by the Bible.  “God has given the earth to the Children of men.”

 

He concludes that the rights of life and liberty can to a large degree be obtained in the state of nature, but the right to property is insured only under government.

 

“The great and chief end,” he says, “therefore, of men uniting into commonwealths and putting themselves under government, is the preservation of their property.”  He felt the right of property was inviolable and that government is bound by social contract to protect that right and may never abrogate it without the consent of the property owner.  He felt that in times of war and emergency, the government can conscript the life and limit the freedom of the individual, but may never arbitrarily remove his possessions.

 

Locke in exalting the three virtues of life, liberty, and property, argued the greatest of these is property.

 

The third philosophical influence, Jacques Rousseau (1712-1778) was a disciple of Locke, but a far more sanguine believer in the natural goodness of Man. He bemoaned Man’s acquisitive nature and discoursed on his belief that in a state of nature where the fruits of the earth are available to all, Man is “a noble savage” ignorant, satisfied, and perfectly free.  When private property is introduced, Man begins to lose his natural goodness.  Government is there, he believed, to protect private property, and therefore is corrupting. A significant concession.  He therefore, advocated for a pure democratic form of government, in which sovereignty rests in the people.

 

Our founders, however, viewed Rousseau’s views dimly and his view that the general good is more important than personal possessions had no appeal to them though his ideas about universal education and the virtues of agrarian life, were later reflected in the views of Jefferson and ultimately, Andrew Jackson.

 

Heavy stuff.

 

But, it does establish that property rights to the framers of the Constitution were extremely important. And to maintain true freedom, they felt, the government should be restricted in interference with an individual’s property rights.  Something we should keep in mind when we contemplate the schemes the government in Sacramento is contemplating.  They have many grand schemes, including universal health care for citizen and non-citizen alike.  They have to pay for many of these grand schemes, not with their money, but with ours. There is no other funding source. And for the average citizens, whose major possessions are their automobiles and homes, one might be concerned that their property rights being whittle away by a government who wants to decide how they are to live, how they are to drive, and how they are to enjoy the property they own.

 

In my next segment I will try to connect this up to how the Supreme Court is going to handle this crossroad.  And how Constitutional law is headed for a collision between Privacy and Property.

 

For more articles on the Constitution and other writings  by Phil Cline, visit philcline.com

 

Cline on the Constitution-New Segment

Cline on the Constitution-New Segment

Roe v Wade

 

I have been studying with interest a series of decisions the Supreme Court rendered as their latest term came to a close. If the decisions shared one characteristic is was the impression that the Court was exercising unusual restraint in being definitive in their opinions.  It was as if they were engaged in a holding action.   Great fun for me, but not so much for those looking for final answers. Then before I could post any updates to my legal blog, Justice Kennedy announced his retirement.  That explained a lot about the tentativeness of the Court in taking a firm position.

 

As with almost everything else in our public life these days, Kennedy’s announcement sent the left’s commentariat into paroxysms of panic.  To hear it told, the pending retirement of an 80 plus years old justice is the latest harbinger of doom for the republic.  Batten down the hatches.  The fear of the change borders on the irrational.  Rather ironic considering the man who appointed Justice Kennedy was none other than President Ronald Reagan.

 

Will the seating of a new justice bring some changes to Constitutional Jurisprudence?  Sure.  Always does. Moreover, in an era of 5-4 decisions an evolution in some aspects of the how the Supreme court interprets cases is inevitable.

 

Does it spell the end? Of course not.

 

I thought it might be helpful to look beyond the fear mongering and scare tactics to explore some of the constitutional issues that will be getting a lot of discussion in the coming months as the process of appointment by the President and approval or rejection by the Senate progresses.  I’ll get back to the new cases in the coming weeks.   Lots of good stuff there, but it can wait a little while.

 

Two issues will receive a lot of discussion.  The first is Gay Rights.  Justice Kennedy penned a series of leading decisions in the area.  His approach was novel and not without controversy. And none of the decisions had the full support of the rest of the Supreme Court.  More 5-4 decisions.

 

I will explore the issue in a future blog, but first let’s discuss the biggest bogeyman of all: Roe v. Wade and the abortion issue.

 

Let me start with one simple proposition.  Some Senators and others have made statements to the effect that the Supreme Court will “criminalize” abortion.  The Supreme Court doesn’t criminalize anything.  Under our Federalist system, matters such as abortion traditionally were the province of the States.  The Supreme court is concerned with whether the legislative acts of states impinge upon rights guaranteed under the Constitution.  That is their role.  While I don’t believe Roe v Wade will be overruled, even if it was, it does not mean the federal government, or the Court will make abortions illegal.  It would mean that under our federalist system the issue would fall back to the states.  And there are those who have always believed that is the way should be. In the 1992 Planned Parenthood v. Casey case (more on this case later) Justice Scalia wrote about the abortion issue:

 

“. . . by foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.  We should get out of this area, where we have no right to be, and where we do neither ourselves nor the country any good by remaining.”

 

Roe v Wade’s central holding is that the Right to Privacy extends to a woman’s decision to choose an abortion.

 

I’ve written in prior blogs about the origins of the Right to Privacy.  Though not explicitly set out in the Bill of Rights, Privacy is a “liberty” protected by the Due Process clauses of the Fifth and Fourteenths amendments.  Under traditional analysis, the government may not interfere with such a right unless there is a compelling interest in doing so and the legislative act or regulation is narrowly focused to address the evil it purports to regulate.  This last is known as the Strict Scrutiny test. It doesn’t mean the government can never restrain a right, but if it attempts to do so, it must pass the Strict Scrutiny test which is very difficult to do.

 

In this context the development of constitutional law related to abortion rose first in various state governments attempts to restrict the distribution of contraceptive information and materials.  In Griswold v Connecticut in 1965 Justice Douglass wrote that the Right to Privacy protected a couple and their doctor from prosecution for trafficking in such materials.  Reproductive rights as a subset of the Right to Privacy came to its full flower in 1972 when the Supreme Court struct down similar laws restricting access to contraceptives to unmarried couples.  Justice Brennan wrote, “if the right to privacy means anything, it is the right of individuals, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

 

The next year Roe v Wade came along.  It was a difficult decision for the justices.  It was actually heard once, including oral argument and an opinion was written and circulated.  But before it was published the Chief Justice decided to set the matter over to the following term to be reargued and a new opinion written.  There was a lot of infighting and back room maneuvering among the justices, but eventually the decision was written and published.

 

One of the striking things about the Roe v Wade is that the opinion was written by Justice Blackmun, an appointee of Richard Nixon.  And to the further surprise of many on the left at the time it was joined in by Chief Justice Warren Burger, also appointed by Nixon.  Which should engender a bit of caution to prognosticators. Being an unreformed prognosticator myself, I try to remember that predictions concerning how particular justices will come down on particular issues based on their party affiliation or the preference of the President who appoints them, once they are confirmed are notoriously inaccurate.

 

Roe v Wade was a natural development in the law of the Right to Privacy.  But it is also important to realize what the Roe v Wade rule is and where the fight has actually been.  At no time has the Roe v Wade or its progeny protected an unlimited right of a woman to have an abortion free of state regulation.  The fight has always been on the over WHEN during the pregnancy the government may restrict a woman’s right to choose and HOW the government may regulate in the area.

 

In Roe v Wade, the government’s interest in regulating was recognized in accordance with a trimester analysis.  The woman’s right was strongest in the first trimester and the government’s interest in the health of the woman and the fetus was most compelling in the last trimester.

 

Justice Sandra O’Connor before she was appointed to the Supreme Court (by Ronald Reagan) was especially critical of the trimester analysis.  She knew the science was wrong.  The real issue in her mind was the line of viability, that is when the fetus can survive outside the womb.  And she rightly predicted that the line would continue to be pushed back as science and understanding improve.

 

She wrote the opinion in Planned Parenthood v Casey in 1992.  And it was here where she and the Supreme Court abandoned the trimester analysis of Roe v Wade.  She changed the test.  Hence forth the test would be whether the government’s regulation was “unduly burdensome” on a woman’s right to terminate a pregnancy “pre-viability.”  But she also made it clear that Roe v Wade had established a woman’s right to choose.

 

O’Connor wrote: “The woman’s right to terminate her pregnancy before viability is the most central principle of Roe v Wade.  It is a rule of law and a component of liberty we cannot renounce.”

 

These two appointees of Presidents Richard Nixon and Ronald Reagan established the right of a woman to terminate a pregnancy and confirmed it as a rule of law which cannot be renounced. It cannot be gainsaid that just because the new justice may be have been vetted by the Federalist Society does not lead to the conclusion that the reversal of Roe v Wade is inevitable.

 

The real issue is how the Court will decide cases concerning State attempts to regulate how abortions are performed and access to services.  For example, imposing restrictions on the licensing of abortion clinics, or hospital privileges for doctors who perform abortions.  That is actually where the fight has been and will continue to be. Not whether a woman has the right. She does and that is unlikely to change.

 

In a 2016 case, Whole Women’s Health v Hellerstedt the undue burden test fashioned by O’Connor was fleshed out to be whether “unnecessary health regulations have the purpose or effect of presenting a substantial obstacle to a woman seeking an abortion” and so “impose an undue burden on the right.”

 

Can we predict how the Supreme Court will rule on future cases dealing with right to abortion? Here is a salient point.  Roe v Wade in 1973 was decided 7 to 2.   Casey in 1992 was decided 5 to 4.  Whole Women’s health in 2016 was decided 5 to 4.  Kennedy in both Casey and Whole Women’s Health was one of the five in the majority.

 

It would seem to indicate a change was very possible.  However, in the individual opinions the debate was largely what test to apply to a particular regulation, not whether the central holding of Roe v Wade, the right of a woman to terminate a pregnancy, would be upheld.  That central holding is not going to change.