Tuesday, March 07, 2006

The South Dakota Abortion Ban.

South Dakota Tries to Ban Abortion.

Obviously this is pretty much old news. But it's fairly big old news, so I figured I should "report" it and post some links on the subject.

How Appealing has a good compilation post already with all the details you really need. The short story is that South Dakota has passed a LAW which effectively bans all abortion in the state of South Dakota, unless performed to save the life of the mother. The law makes it a criminal offense for which the doctor (but not the "recipient") can be punished. People on both sides of the abortion debate have gotten fired up about this.

But before anyone gets too excited, everyone should stop and take a deep breath. The most likely impact of South Dakota challenging Roe v. Wade? Probably nothing. Why, you ask?
Well, because right now there aren't enough votes to overturn Roe at the U.S. Supreme Court (unless Kennedy for some reason drifts to the right on the issue). So the most likely scenario is that somebody will file a challenge to the law, the courts, bound by the precedent of Roe, will strike the law down, and it will never take effect. At this point it is highly unlikely that the Supreme Court would have any interest in hearing an appeal from the court decisions striking the law, either.

"I'd actually be surprised if this ever reaches the [Supreme] Court," said John McGinnis, a constitutional law professor at Northwestern University. "My prediction is the lower courts will find this an easy case and strike it down. [The Supreme Court] could choose to hear the case or not, and I don't think it's going to."

Harold Krent, a dean and constitutional law professor at Chicago-Kent College of Law, agreed there's "no guarantee" of a high-court review.

South Dakota's legislature set July 1 as the date for the law to take effect, but Krent anticipates a court order will stop that because "on its face, the statute looks inconsistent with prior constitutional rulings protecting a woman's right to choose."

The only scenario in which it seems likely that South Dakota's ban ever reaches the Supreme Court and actually manifests as a viable challenge to Roe is if the case takes long enough to get through the lower courts that another SCOTUS Justice leaves the bench and is replaced; and then it would have to be one of the current five Justices who favor keeping abortion legal. While this is not impossible, it is unlikely. Instead, what's probably really going on is that the South Dakota legislators and Governor saw an opportunity to make some political capital by taking this "bold" (though ultimately meaningless) step, and challengers to Roe will simply have to try it all over again at some later point.


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