This will go to a local federal court. They have already ruled that this type of legislation violates existing precedent since it doesn't allow for enough exceptions.
After the law is thrown out by the district court the proponents would then have to show the Supreme Court that this presents an issue that hasn't be previously decided. It is quite possible that the high court will prefer to cite precedent and not take on the case. In their eagerness to throw out all abortion, the supporters have crafted a very weak test.
Posted by robertdfeinman at February 24, 2006 01:16 PMHow can SD outlaw abortion when Roe upheld it in all 50 states?
What's next for SD? Will they begin minting their own currency?
Posted by Christopher at February 24, 2006 01:47 PMThat may well be, but why should we doubt that Bu$hCo wouldn't take even the flimsiest excuse (as they did in 2000!) to advance their agenda? I have no doubt that even a weak case will be seen as strong enough to provide the necessary justification.
Posted by pessimist at February 24, 2006 01:50 PMIt's doubtful that it will move that fast. It will probably take at least a year until it gets to the Supreme Court -- and they could decide not to hear it at all and let lower court rulings (which probably will strike down the law) stand. If it does get there and we have the same court we do today, it is reasonable to assume that it will be a 5-4 vote to strike it down. However, if we lose Stevens or Ginsburg before then, who knows?
Posted by Edward Copeland at February 24, 2006 01:54 PMIt's doubtful that it will move that fast. It will probably take at least a year until it gets to the Supreme Court -- and they could decide not to hear it at all and let lower court rulings (which probably will strike down the law) stand.
What would happen in the meantime? The ban is set to come in effect in July. If there is a legal challenge to the constitutionality of the ban, can they maintain the ban?
Posted by ann at February 24, 2006 02:11 PMThe Supreme Court just agreed (last week?) to hear an appeal of the various court of appeals rulings striking down the Federal Partial Birth Abortion Act.
That case will likely be argued this Fall 2006, I believe, and the Court, with Alito instead of Sandra Day, will likely uphold the constitutionality of the federal ban on such abortions. (O'Connor had been the decisive vote 5th vote in a prior case striking down such bans). That ruling will probably be issued in the first quarter of 2007 at the earliest.
This new SD law will be promptly held unconstitutional by the US District Court for the District of South Dakota, as it clearly violates existing law (Roe and Casey). It is likely that the Federal Court of Appeals for the 8th Circuit will be forced (by Roe) to affirm such a ruling, but they may wait to see what the Supreme Court does with the partial birth case before issuing their opinion.
Then, sometime in 2007, it will be up the Supreme Court to decide to hear the SD case. They may not decide to take the case because the law is so stupidly draconian from what I've read.
Americans can pretty much give up on retaining a federal constitutional right to choose to have an abortion. Alito was the end of that right. It's all just a matter of time at this point. But we'll be all be losing many of our existing rights over the next decade, if that's any consolation.
Getting an abortion in SD was essentially impossible even before this law. Choice, like most things in BushAmerica, will become a prerogative of the rich only. Tell your daughters they don't want to be poor in this country. The lives of the poor will be in the hands of Jeebus.
Posted by euzoius at February 24, 2006 03:41 PMWhat would happen in the meantime? The ban is set to come in effect in July. If there is a legal challenge to the constitutionality of the ban, can they maintain the ban?
It will probably resemble what just happened in Ayotte v. Planned Parenthood of Northern New England.
Somebody with standing--either a pregnant woman or a healthcare provider--will sue to have the law enjoined. A district court will say that the law seems to violate the Constitution, and will issue an injunction that prevents the law from being enforced. If the state wishes to go on enforcing the law, they will sue to get the injunction lifted, just as New Hampshire just sued to get the injunction lifted on their parental notification law.
Unlike the situation in Ayotte, the law would probably be considered facially unconstitutional, so they wouldn't be able to just punt (remanding with an instruction to issue a less sweeping injunction) the way they did there.
Posted by dj moonbat at February 24, 2006 03:55 PMSo - who else noticed the kid's iPod earbuds?
Her master's voice, indeed.
Posted by idiosynchronic at February 24, 2006 04:17 PMWhat I find most disturbing is this picture. Yes, I know that the whole point is that this brain-washed kid, having been raised up in some mega church with the cultist christian rock band screaming to her that the only way to be saved is to fight the killing of the babies by all the evil libruls, has this tape over her mouth.
I know the symbolic representation is supposed to be that she must be the voice for the baby who is about to be murdered by the slutty woman - but that is not what this symbolizes.
A woman's choice is a woman's voice. Voice is the only thing that a woman has to fight for her right to exist and to exist equally and to equally pursue life, liberty and happiness.
There is absolutely no one who "demands" abortion. Abortion on demand is another mythical talking point of these rightist, control women with all we've got, bastards.
It is an extremely devastating decision no matter what decision the woman with the unplanned pregnancy makes. The ramifications, whatever the decision, are life-long.
To take away a woman's voice, to take away her choice, is to reduce her to an owned object worth nothing more than the bible on the shelf. Just a symbolic thing that has no real meaning unless the attributes contained within are set free.
Hold that picture in your head guys - all womens tongues will soon be removed, their faces veiled, their feet bound and their shoes burned.
Posted by Anjha at February 24, 2006 04:29 PMThere is no way in hell this case will be heard prior to the elections in November.
Posted by Judith at February 24, 2006 08:38 PMThere is no way in hell this case will be heard prior to the elections in November.
All the better to rally the base. I wonder if that was why it was brought up now, because unless someone else on the SCOTUS changes their vote on Roe, this won't go anywhere since there's still a majority upholding Roe.
Posted by ann at February 24, 2006 09:01 PMA woman's choice is a woman's voice. Voice is the only thing that a woman has to fight for her right to exist and to exist equally and to equally pursue life, liberty and happiness.
Anjha, excellent! You are quite correct that this is not about abortion, but it is about control, punishment and servitude.
Some years ago, St. Louis thought that it would be a good idea to post the names of women having abortions in the newspaper (I'm not sure how they thought this would be accomplished, but never-the-less it was suggested). I wrote an editorial saying that I thought the idea was excellent and long overdue. Then I went one step further and said that I thought that next to the women's name we should also print the name of the man who fathered the said child. Printing a women's name in the newspaper would have been to humiliate and punish the women, nothing more.
Posted by Judith at February 24, 2006 09:24 PMAnn, what I can't believe is that in the year 2006, we are still fighting this issue. The steadfast tenacity of the far-right to believe that they should have the right to control a woman's life is absolutely amazing.
Posted by Judith at February 24, 2006 09:39 PM
After the law is thrown out by the district court the proponents would then have to show the Supreme Court that this presents an issue that hasn't be previously decided. It is quite possible that the high court will prefer to cite precedent and not take on the case. In their eagerness to throw out all abortion, the supporters have crafted a very weak test.
What ever gave you that idea? The Supreme Court can grant cert to any case it wants, and it only takes FOUR judges to do it. They have those four now, who will agree to hear the case, even if only for the purpose of overturning what they consider bad law.
It happened very recently, in 2003, when Lawrence v. Texas overturned Bowers v. Hardwick, a 1986 (I think) case that had ruled that outlawing sodomy was not unconstitutional. The fact patterns in the two cases were almost identical, and Justice Kennedy wrote in Lawrence, simply, Bowers is bad law, and is hereby overturned.
Lawrence was potentially revolutionary for anyone who knows about Constitutional jurisprudence. All that was really reported was the gay rights aspect, but the rational upon which the ruling was based was starkly libertarian - unenumerated liberty interests. The Court hasn't been so bold for a century and a half, if it were ever that bold.
Here's the thing: The SD legislature is betting that by the time their case reaches the point where the appellate loser will petition the Supreme Court for cert, one of the Lawrence 5 (Kennedy, Ginsburg, Stevens, Souter and Breyer) will be gone - most likley Stevens, possibly Ginsburg - whereupon the stage will be set for an out-and-out overturning of Roe.
Best possible scenario (read unrealistic dream of an overly optimistic civil libertarian): the case gets to the Court with the Lawrence 5 intact, and they revamp the rational for abortion rights from fundamental sexual privacy rights to simple unenumerated liberty interests, and the Religious Right's strategies ultimately bite them in the ass.
Anyway.....want a fascinating look at anti-abortion activism? Go here and download this 6 minute movie.
Posted by Liveliest Crib at February 24, 2006 11:50 PMThat was a fascinating movie, thank you Liveliest Crib.
Short version: of the demonstrators shown, only one outright expressed belief that women who get an illegal abortion should serve jail time.
Posted by idiosynchronic at February 25, 2006 03:06 PM