South Dakota's New Abortion Ban

JB

Why am I so certain that something like this will happen?

First, I am assuming that Justice Stevens will not retire in the next two years. If he does, then there will be only four votes for retaining Roe and Casey, and all bets are off. Indeed, South Dakota legislators may have been banking on precisely this possibility: They may be hoping that the case won't make it from the district court to the Eighth Circuit to the Supreme Court until after Stevens leaves the Court and after his successor is appointed by a Republican President and confirmed by a Republican controlled Congress. But we have no assurances of this happening yet, so we start with the fact that five Justices (including Kennedy) will vote to uphold the basic right to abortion. If that is so, then the most likely result is that the law will be struck down in the lower courts and the Supreme Court will deny cert.

Second, assuming that Stevens remains on the Court, if the goal of anti-abortion advocates is to overturn Roe, the most likely way this will happen is by chipping away at Roe and Casey slowly over time. The 8th Circuit's decision on the Federal Partial Birth Abortion statute, on which the Supreme Court has accepted certiorari, is a far better vehicle for undermining the doctrinal foundations of Roe and Casey through a series of doctrinal distinctions. Only after the Court has heard a number of these challenges, undermining Roe's and Casey's doctrinal basis, will it be likely to accept a case that challenges Roe and Casey head on. So a statute like South Dakota's might be the basis of a full on challenge to Roe in about five years or later, assuming that the Court upholds the Federal Partial Birth Abortion law (which they may do to some extent-- more about that in a later post) and takes a series of abortion cases in the next few Terms that serve to undermine Roe.

Again, if Stevens leaves, the Court may accelerate this process, as happened when Powell retired in 1987. This led, first, to Webster, and ultimately, to Casey, which did not overturn Roe but cut back on it significantly.

Nevertheless, the South Dakota bill, if it passes, is important for its symbolic effect. It signals that (some) pro-life forces are trying, yet again, for another all out assault on Roe. To win, they will have to gain a sustained majority of public support for overturning Roe, something they do not yet have, and they will have to ensure that the Republicans stay in power so that Republican Presidents and Republican-controlled Congresses stock the federal courts with pro-life judges. (The reason why sustained public support is important is that if the public is not behind overruling Roe, the Republicans will be far less likely to appoint people who will vote to overturn Roe and Casey). On the other hand, if the next Supreme Court appointment is made by a Democrat, the pro-life cause will be set back for a time, because the swing Justice will remain Justice Kennedy. Then the most that pro-life forces can hope for is a very slow chipping away at Roe.