So, as I’m sure we all know, the South Dakota State Legislature and the Governor have officially passed a bill banning all forms of abortion, except those that would save the mother’s life. Naturally many pro-choice advocates are up in arms, and most pro-lifers are thrilled that some state is taking an immediate shot at the newly right-of-center Supreme Court majority. But here’s the question…is this too much too soon? Are SD and abortion foes taking too big of a chance too early on in this SCOTUS’s life?
There has been a lot of debate over this issue, but this is how I see it: As Justice Roberts so aptly pointed out in the Senate confirmation hearings, the more cases decided to support a certain rule of law, the greater their precedent will be strengthened. Clearly, there have been several cases upholding and affirming Roe v. Wade, with the usual suspects dissenting everytime with the exact same arguments. (i.e. Scalia being his constitutionally strict and traditionalist self)
But imagine this, what if Roberts and Alito actually stick to the whole stare decisis principle? What if this law eventually reaches the SCOTUS as the FIRST full frontal attack on the substantive holding in Roe v. Wade? And what if the SCOTUS does uphold Roe v. Wade, as it has done in various other more limited abortion cases? That means that, under this right-of-center court, the holding in Roe gains even more strength and validity than it did before. Keep in mind that the ONLY times that the SC overturns decisions is during times of sweeping social change (i.e. Civil Rights movement, Great Depression), or in cases where the original decision was so disjointed, and so isolated, that reversal is overwhelmingly appropriate.
So, here’s my point to throw out for discussion: Is this full frontal attack on Roe too much of a risk for the pro-life advocates to bear? Could this actually be a good thing for pro-choice advocates? Let’s hear some ideas.
IMHO, the South Dakota thing is a gigantic mistake on the part of the crowd that would like to see Roe overturned. For two reasons. First, as you point out, we really don’t yet know what Roberts and Alito think about stare decisis – although we will know soon, because the partial birth abortion case will tell us a lot.
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But second, even if Roberts and Alito are willing to throw stare decisis out the window when they don’t agree with a previously-decided case, it doesn’t matter – they still don’t have the votes. They’d have Scalia, Thomas, Roberts, and Alito. But Kennedy was one of the authors of the lead opinion in Casey, and he’s not going to abandon that position and go along with something like the South Dakota law – nor, of course, will any of the 4 “liberals.” That makes 5 votes to declare the law unconstitutional.
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So the only thing that makes any sense is that the backers of this law are assuming (1) that both Roberts and Alito will jettison stare decisis; (2) that another center/left vacancy on the Supreme Court will open up before this case reaches the Court; (3) that George W. Bush or some equally conservative Republican will be president when that happens; (4) that Republicans will still control the Senate when that happens; and (5) that the president will nominate, and the Senate will confirm, a judge who is willing to overrule Roe v. Wade. Awfully, awfully dangerous assumptions – if any one of them fails, they get yet another decision reaffirming Roe and Casey. They have a lot to lose on this one.
It’s nothing more than a political shell game.
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It reminds the right wing base that the Preznit “cares” about them and their issues, and gets them to the polls in 2006, instead of them sitting at home cause they’re pissed off about being broke, poor, and unemployed. Instead, they go to vote against abortion!
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Worst thing that could happen to the Republicans is an overturning of Roe v. Wade. It would shatter their party, since the moderate republicans would evaporate from their party and vote for every Democrat up and down the ballot. It’d be a total political realignment – and none of the smart political minds in their party want it.
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The Preznit’s approval is 36% because of strong dissatisfaction inside his own base – and their disagreements with his corporate side and the ports deal as well as his “weak” stance on immigration, his disaster with Katrina, and general unrest about the war.
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This is red meat directly for the base. Overturning Roe v. Wade? They hope not.