O'Conner was an activist on this issue. Kennedy has always supported a ban on partial-birth and parental notification. Kennedy was not persuaded, that has been his position. Kennedy supports a women's right to abortion, but he believes it can be regulated. O'Conner opposed any restrictions on abortions.
The issue had to be precisely framed to get the result we wanted here. It had to squarely go to the issues he stated in his dissenting opinion in the Nebraska Partial Birth Abortion case. As the above-noted CSM reported in the past October:
With the possibility of the court divided 4-4 on the issue, Kennedy may wield the decisive vote. If he sticks to the analysis in his dissent in the Nebraska case, court watchers say the law will be upheld. If he adheres to his strongly held belief in stare decisis - affirming precedent even when a justice disagrees with it - the federal law will be struck down.Apparently the Chief Chustice was able to manuever the issue precisely the way it needed to go to get Kennedy to vindicate your belief that "Kennedy has always supported a ban on partial-birth and parental notification."But Kennedy's dissent in the Nebraska case suggests another possibility. In 1992, Kennedy helped author a major abortion decision, Planned Parenthood v. Casey, which reaffirmed the central holding in Roe v. Wade that established a woman's right to choose to have an abortion. Part of Kennedy's contribution to the Casey decision was a guarantee that the states could regulate abortion procedures provided the regulations didn't create a substantial obstacle to obtaining an abortion. In his dissent in the Nebraska partial-birth abortion case, Kennedy complained that the five-justice majority swept aside the guarantee he apparently wrote into the Casey opinion.
Now, six years later, Kennedy could uphold the 2003 federal law under the theory that the same leeway guaranteed to state lawmakers in the 1992 Casey decision also exists for federal lawmakers. In effect, he would be applying stare decisis to his interpretation of Casey - an interpretation that would undercut the Nebraska ruling as being an unfaithful application of the 1992 Casey precedent. One complicating factor to this scenario, however, is Justice Antonin Scalia's insistence that the Casey abortion precedent (and Roe) must be overruled.
This was a closer issue than that, and it was a slugfest that likely went down to the wire in Chambers.