Wednesday, February 22, 2006


The war over Roe is beginning for real now. An Alito-assisted overturn seems more and more likely, with the Court ready to hear partial-birth abortion. While some may believe that's the only issue they might be deciding, I predict there's a possibility of some pretty strong precedent-shredding there. Maybe even a complete overturn of Roe itself. But even if the ultimate shield of the pro-choice movement survives this challenge, South Dakota is already cooking up a mother of one for the next round.

Lawmakers here are preparing to vote on a bill that would outlaw nearly all abortions in South Dakota, a measure that could become the most sweeping ban approved by any state in more than a decade, those on both sides of the abortion debate say.

If the bill passes a narrowly divided Senate in a vote expected on Wednesday, and is signed by Gov. Michael Rounds, a Republican who opposes abortion, advocates of abortion rights have pledged to challenge it in court immediately — and that is precisely what the bill's supporters have in mind.

Optimistic about the recent changes on the United States Supreme Court, some abortion opponents say they have new hope that a court fight over a ban here could lead to the overturning of Roe v. Wade, the 1973 decision that made abortion legal around the country.

"I'm convinced that the timing is right for this," said State Representative Roger Hunt, a Republican who has sponsored the bill, noting the appointments of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. to the court.

"The strong possibility of a third appointee sometime soon makes this all very real and very viable," Mr. Hunt added, a reference to conjecture that Justice John Paul Stevens, 85, might soon retire. "I think it will all culminate at the right time."

There are many possibilities of what could happen here. If I was the pro-choice movement, I would do the following: stop counting on (or rhetorically resting on) Roe, and get to work. And by work, I mean legislation. Pro-choice advocates and those sensitive to their arguments need to prepare for a post-Roe future, and start working on it now. That means getting abortion legalized on the books (even though it's already legal) in as many states as you can. Also, other areas that Roe penetrates into (contraceptives and such) will also need an affirmative defense. Also, abortion bans at the state level will need serious attention now, and not the vain hope that a court will defend it. Ideally, a lot of this stuff should've been done ages ago. And, of course, there's the ultimate affirmative defense, pushing a Constitutional Amendment for the Right to Privacy. While such a thing is not likely to pass, it will mobilize a lot of center-left to left people the way the Federal Marriage Amendment did the right, and is innocuous sounding and far reaching enough to perhaps pull support from political independents and weak pro-choice Republicans.

I've articulated before my fears of the Roe overturn, despite my skepticism of much of the pro-choice movement and disagreement with many of its central propositions. Mostly because while conservatives like to harp that it will just bring the fight back to the state level (as if that's not a big deal, which it is), I don't believe that rhetoric for an instant. The current Congress and President have been some of the greatest enemies of real federalism since LBJ, and I don't think they'll suddenly return to principal on an issue like abortion. Expect a full-out nationwide ban, commerce clause be damned! That is not a state of affairs I can live with. The future is here, and it's looking like a post-Roe future. Scary as it is, it's time to acknowledge it and begin the real political struggle.