Friday, February 24, 2006

South Dakota to Roe: Drop dead !

South Dakota has passed a law prohibiting almost all abortions, permitting them only when necessary to save the life of the mother.

Does this presage a challenge to Roe? If Alito and Roberts feel that Roe should be reconsidered, there are four votes for cert and, under the "rule of four," that's all it takes. There are still presumably five votes for Roe, but if, somewhere in there, Stevens is replaced, Roe might be in trouble.

Do I think this will happen?

No. Whatever their views, I don't see the four conservatives voting to take a case to re-examine Roe when they don't have the fifth vote. Stevens will have to be off the Court before the cert petition is filed and my guess is that he is going to do everything he can to hang on for the next two years.

Even if Stevens is replaced, I am not so sure that we'll be able to replace him with a solid conservative, particularly if the Dems gain seats in the Senate. If Bush gets another appointment, the confirmation battle is going to look like Verdun. Better pick up a few seats.

Somehow I don't see Roberts as wanting it to happen this way. My guess is that Roe gets weakened but doesn't go away. Any case arising out of South Dakota's law - which is a full frontal assault on Roe - is probably not the vehicle for that.


Anonymous said...

Rick, what do you think of the no exception for rape or incest in the South Dakota law?

Rick Esenberg said...

I can understand the rationale, but its a very hard thing. I can live with those exceptions.