SD Law may fall short of mark
One state's ban might not stand up to 'Roe' precedent
By Stephen Henderson
Inquirer Washington Bureau
At first glance, the abortion ban passed yesterday in South Dakota may seem like the first salvo in the long-anticipated Great War over abortion. It's a state law that takes on Roe v. Wade directly, saying there simply is no right to end a pregnancy.
But for that reason alone, the South Dakota action is likely to fizzle well short of its mark. The landmark Roe ruling has stood for 33 years and has been reaffirmed more than 30 times by the Supreme Court. As precedents go on the high court, it's rock-solid. Senate Judiciary Committee Chairman Arlen Specter (R., Pa.) has taken to calling it a "super-precedent."
Moreover, the court's new makeup, with Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr., may make little difference in the court's math on this issue. Even if Roberts and Alito were to back a direct attack on abortion rights - a big if - five justices remain who have voted before to preserve Roe.
Unless one of those five changes his or her mind, the South Dakota ban seems almost certainly headed for a quick legal slap-down: a permanent injunction that would not even be reviewed by the high court.
"I don't see much chance this law could survive," said constitutional scholar David Garrow, who has written extensively about abortion and Roe. "There just isn't any question it violates Roe, and there aren't the votes on the court now to overturn it."
Abortion opponents have had far greater success with efforts to whittle away at the scope of Roe, rather than taking it on directly, Garrow and others said.
This fall, for example, the high court will revisit the idea of banning so-called partial-birth abortion; the court previously rejected such a ban, but Alito's presence - in place of Sandra Day O'Connor - could tip the balance in the other direction. That would be a major victory for antiabortion interests and would increase the chances that other limits would survive constitutional scrutiny.
Eventually, there may be five votes to overturn Roe itself, but the path to that goal runs through smaller, incremental squabbles in the margins.
"It's not that Roe couldn't someday be overturned," Garrow said. "It's just that this is much too early to think in those terms. Strategically, it's not a good move."