Jumping the Gun on Abortion

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South Dakota has now passed an almost complete ban on abortion. Four other states are doing similar things. Pundits are agreed that this is an attempt to force the Supreme Court to revisit Roe v. Wade. I have to register my complaint that this is an utterly stupid and potentially counterproductive move from a pro-life point of view. There are five people currently sitting on the Supreme Court who voted to uphold the central holding of Roe v. Wade (while completely gutting its justification) the last time it came up. There's no guarantee that any change will take place in membership of the court before these cases could come before them. If that happens, these states will just have put one more nail in the coffin of the idea that Roe could easily be overturned. The more times a decision is upheld, the stronger the precedent becomes, and South Dakota and these other states may well be setting events in motion to strengthen the standing of Roe v. Wade. Chief Justice Roberts and Justice Alito both affirmed this principle at their hearings, and Justice Scalia seems to treat precedent in this standard way as well in many cases. Only Justice Thomas would consider this irrelevant.

There have been several comments assuming Justices Ginsburg or Stevens would be gone by the time these cases come before the court, but even if that's so (and there's no guarantee of it) we have no idea if they would be replaced by people who would overturn Roe. If Hillary Clinton appoints their replacements, you can be sure they would vote to uphold it no matter the merits. She has said numerous times that she wouldn't appoint anyone who wouldn't promise to uphold it (though perhaps an argument for recusal would then be warranted). But what's worse is that we don't really even know if Justice Alito or Chief Justice Roberts would overturn Roe. Many on both the left and the right are assuming they would, but they both hold precedent in high regard. They both seem to be particularists and not as much originalists (though I think Alito is more of one), which means the individual facts of the case are primary. Alito in particular advocated a slower process of limiting Roe as the best method for serving pro-life interests. I admit that this was twenty years ago, but it says something about how he might approach a case like the ones these lawmakers are seeking to raise.

But there's a third possibility that might be even worse for those who want Roe overturned. The case might come before the court as it stands, and the four conservatives on this issue might try to convince the others not to hear the case because they don't want a further precedent on Roe. The majority might give in, thinking it's not worth the bother to repeat what they've already said several times. What we'd then end up with is a precedent on not even hearing cases that challenge Roe, and then it will be that much harder to get a case to the Supreme Court once there is a conservative majority on abortion.

So what are these state legislatures thinking? Or are they simply not thinking? It doesn't serve the pro-life cause in any way to do this sort of thing in our current situation.

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5 Comments

I had just assumed that the state of South Dakota was simply acting to a) conform to the ideas of its residents and b) try to outlaw something they feel is reprehensible.

I'm not fond of trying to read everything in terms of political strategy.

Also, all that is requred for SD and other states to succeed at this is for the SCOTUS to refuse to hear cases against them.

Any case against them will have already been decided against them by lower courts, who are bound by Supreme Court precedent. Once it gets to the Supreme Court, they have a choice not to hear it and let the law continue to be treated as unconstitutional or to hear the case and possibly overturn precedent. If they refuse to hear it, the law will remain invalid.

I think there's language in the law itself that references Roe v. Wade, so I don't think it's a matter of controversy whether the lawmakers intended this as an explicit challenge to Roe. They clearly did.

I was thinking along the same lines when I read about it. It is a major risk. I really dislike the fact that we as a nation put that much power in these judges. Some of them are not very in touch with reality!

Dear Jeremey,
All the reasoning that you have laid out may be true, but I can not see how any challenge to the current unconstitutional law is bad. At the least, it will get a lot of publicity and allow all who speak against the killing a greater opportunity to teach others of God's law.

I'm not denying that it might have lots of good effects, but the goal is to try to overturn Roe v. Wade. It may just have the opposite effect, making it next to impossible to get it overturned at a later time even if the court changes to have enough people who would vote on a case like this to overturn the decision. Right now it's well within the realm of possibility, as long as one of the five clear Roe votes gets replaced by someone who might overturn it with the right sort of case (i.e. one that the other four potential overturners also found to be the right sort of case). If yet another decision upholding Roe gets handed down, the argument for overturning it isn't going to get much weaker. This is a moment pro-life people have been waiting a long time for, but their inability to understand the realities of the process might allow their impatience to prevent their primary goal.

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