I’m sure some of you have already heard that the state of South Dakota passed legislation banning all abortions except in cases where the mother’s life is at stake (Mississippi and Tennessee are considering similar abortion-banning laws). They know such a law is unconstitutional. They passed it as a direct challenge to Roe. They know it will be challenged by pro-abortion groups, and overturned by the lower courts. Their desire is to have it reviewed by the Supreme Court, and their hope is that the Supreme Court will overturn Roe.

While I am pro-life to the core, heartily support the content of this legislation, and want to see Roe challenged, I am strongly opposed to South Dakota’s actions…on a tactical level. As Scott Klusendorf has said, it is the right bill but the wrong time. The strategy seems doomed to fail, and its failure could set the pro-life movement back for years to come, resulting in the unintended effect of more dead babies.

The problem with SD’s strategy is that they forgot how to count. While conservatives have been excited over the recent appointments of Chief Justice Roberts and Justice Alito, the fact remains that there are still only four judicial conservatives on the Court. We need five votes to overturn Roe. It’s almost certain that Stevens, Breyer, Ginsburg, Souter, and Kennedy will uphold Roe. Only Thomas, Scalia, Roberts, and Alito are likely to vote for its demise. Some even doubt that Roberts and Alito would vote against Roe because new justices are less likely to overturn such a precedent.

SD may be betting on the death or retirement of one of the Roe supporters (maybe Stevens) prior to the case reaching the Supreme Court (which I think would take 1-2 years—correct me if I’m wrong Andy or Seni). That could happen but it’s not likely, and is a risky gamble. As Steve Chapman wrote, “But that’s not counting chickens before they’re hatched — it’s counting them before the eggs are even laid.” Besides, if a vacancy did open up on the Court it would make the next nomination battle extremely intense, with the Democrats filibustering any nominee that even hints s/he does not support Roe. If the seat remains vacant when the case is heard, it would be a 4-4 vote and Roe would remain the law of the land. Of course the Supreme Court doesn’t even have to hear the case, in which case it is dead on arrival.

SD may also be betting that Kennedy will decide to vote against Roe. I think this is a false hope. Counting on Kennedy to vote to overturn Roe is quite a gamble, and if the gamble doesn’t go in our favor we’ll be in worse legal position than we are now because Roe will have been directly reaffirmed twice, setting a “super” precedent. A legal defeat now could set us back years in the legal landscape.

I don’t think Kennedy would vote to overturn Roe for two obvious reasons. First, he is fairly liberal in his constitutional philosophy, and Roe rests on that sort of an approach to constitutional interpretation. Secondly, and most importantly, he has already voted to uphold Roe in the past, even if the decision was at the last minute (It’s been said that he was going to vote against Roe in Casey, but was persuaded by O’Connor to change his opinion at the last moment. I don’t know if that is true or not.). So even if he wants to overturn Roe now he is fighting against two precedents: Roe, and his own vote in Casey. Not only does he have the negative pressure of casting a vote to overturn a well-established precedent that millions of women have come to rely on, but he also has the pressure of admitting that his past ruling was mistaken. I think those two hurdles combined are too much for him to overcome, even if he thinks Roe should be overturned (and that is only speculation).

Hopefully SD will have enough sense not to appeal the case once the law is ruled unconstitutional. If we want to see Roe overturned it is best to do so in a piecemeal fashion as we have been (parental notification laws, waiting periods, partial-birth abortion bans, etc.) until we have enough judicially conservative justices on the bench who will overturn Roe for the bad law it is. Then we can challenge Roe. We must be mindful of both the legal and political landscape in which we are working. I don’t think SD considered either. Their legislation makes a wonderful statement, but I don’t think it will be effective for furthering the pro-life cause…at this time.

What do you think?

For further reading on the strategical problems of South Dakota’s approach I would recommend the following:

Costly Gestures

South Dakota’s Impatience on Abortion

A Pro-Life Mistake