Thursday, February 23, 2006

South Dakota's New Abortion Ban


South Dakota's new abortion legislation has not yet been signed by the Governor. If it becomes law, it will not lead to a challenge to Roe v. Wade or Casey at the Supreme Court. Because the law bans almost all abortions, it will be immediately challenged in a declaratory judgment action, and a preliminary injunction will issue. That injunction will be upheld by the 8th Circuit, and the Supreme Court will deny certiorari. And that will be the end of the matter.

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.


It's good to read a piece that doesn't pretend that law is anything other than politics. No thought here that persuasive legal reasoning, doctrinal development, all the things that law professors do, will have any effect on the development of constitutional law.

This is a good post except for one small thing: The best thing that Republicans can do for the liberal cause is to outlaw abortion.

The facts are these: there are two major issues that continue to be raised every election year: Abortion and Gun Control.

Conservatives won the war over gun control decades ago and liberals won the war on Abortion during the same time period.

I would make a big money wager with ANYONE that if the conservatives ever found a way to outlaw abortion women of all political stripes would walk and take their votes with them.

I dont care how many right-wing men there are in America, if the women walk out of the Republican party then the Democrats will begin winning elections like never before.

For my part, I would just love to see abortion made illigal so that this would happen and we can get a Democratic majority in DC again.

The push in the SD legislature for this law was very likely more emotional than strategic.

Thanks for this take on the SD law, certainly more optimistic (perhaps, realistic?) than my own. It's certainly not the first time I've heard it suggested that Roe vs. Wade will fall not in one fell swoop but through a series of peripheral attacks designed to gradually contain and weaken its holding.

And that very well may be what happens. Then again, perhaps Stevens retires, as you suggest. Or, alternatively, perhaps the slow pace of attack on Roe speeds up considerably.

While I don't believe that Supreme Court jurisprudence is entirely political (nor do I believe that the original post suggests this) I do think that the abortion issue is more highly politicized than most. If the public debate on the issue boils over in the next year or two, which it may, then it's hardly out of the realm of possibility for the court, even as currently constituted, to accept cert.

But, of course, I hope I'm wrong...


"I dont care how many right-wing men there are in America, if the women walk out of the Republican party then the Democrats will begin winning elections like never before."

LOL And you actually think that the women in the Republican party are pro-choice? Talking points about the pro-life movement being a male plot to dominate women aside, that movement happens to be predominantly female. Females who vote the ideology they actually hold, not the one you attribute to them on the bases of their gender.

That aside, I'm somewhat stuck by the asymetry of the claim that conservatives won the war over gun control, and liberals over abortion. Where's OUR Supreme court ruling striking down all gun laws? Where are OUR subsidies for minors who want to buy guns without their parents' knowlege?

I demand equity! ;)

Hell, Democrats ought to place a moratorium, similar to all those phone "gay/marriage" bills in 2004 in November ballots.

You know, states like Maryland and California and any other state that allows a referendum.

This is a win-win wedge issue for Democrats as the right to choose is overwhelmingly supported.

The caveat about Stevens deserves a little more weight than you give to it, I think. It's far from certain that he won't resign in the next two years, and should the Democrats not take the White House in '08...

I think it's time we complain to the DNC about Democrats who don't support a woman's right to choose. For instance, the six senators in South Dakota who voted to ban all abortions, even for rape and incest and health reasons.

Also, serious consideration needs to be given as to whether you send money to the DNC. Remember money to the DNC is given to the state parties to support candidates such as these six senators and the Democratic senator in Mississippi who just introduced legislation to ban abortion. Your money would be better spent going to a candidate directly that you know supports the right to choose.

The Democratic Party takes us for granted because they say we have no place to I just heard from a DNC staffer. It is time the Democrats who do no support abortion rights be punished. It is time for them to leave the party.

Go to their website and fire off a letter...

or better yet, pick up the phone and call them (be prepared to wait....)


Call South Dakota Democratic Party


write South Dakota Democratic Party

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