A Stable America?
By now, no doubt, most of you have heard that the South Dakotan State Senate has passed a law banning most forms of abortion ( the law ONLY permit abortion if the life of the mother is threatened by pregnancy, meaning that in cases of rape and incest abortion is illegal). The law is now likely to be passed by the South Dakotan House, and signed by the governor, who is a long time abortion opponent. The reason this happened? Many conservative activist feel that with the new justices appointed by Bush there is now a majority to overturn Roe v. Wade.
Now, this is very unlikely to happen. First of all, while the law will be challenged it is not likely to be upheld by the district court which is bound by the current state of the law. If the law is struck down, it is highly unlikely that the Supreme Court will grant cert. Four votes are needed for cert, and while there are clearly three justices willing to overturn, Justice Roberts has indicated no such desire. Should the district or circuit court find the law constitutional however, the Supreme Court will have to take the case setting up the grand showdown. Should this happen - the result is unpredictable, particularly so as President Bush may have an opportunity to appoint at least one more justice.
However, there is another important part to this debate. During Samuel Alito's confirmation hearings several influential senators, including John McCain indicated that they though Roe was safe because America is a stable country, where such monumental changes are unlikely. I always found the argument a bit disingenuous. I understand why McCain uses it - its the only way for him to reconcile his presidential ambitions and anti-abortion views, but it doesn't make him correct. America is, and has always been, subject to significant transformations over short periods of time - particularly so when driven by the Court. Take the rights revolution for example - in a period of less then five years the courts, using cases like Goldberg v. Kelly and the hard look doctrine in Overton Park, largely re-wrote the administrative law playbook, radically changing the nature of our regulatory state. Similarly, Roe itself was a very sudden decision that shocked many. America is politically stable, but that doesn't mean, that it is not susceptible to huge shifts in social values and politics over short periods of time.
And the behavior of South Dakota's politicians indicates just that. Seeing an opportunity they are trying to ram through their vision of what society should be like, one that would be quite a radical shift to the country. They might not succeed, but that doesn't mean that its impossible....a view that many who relied on McCain's words best consider.
Now, this is very unlikely to happen. First of all, while the law will be challenged it is not likely to be upheld by the district court which is bound by the current state of the law. If the law is struck down, it is highly unlikely that the Supreme Court will grant cert. Four votes are needed for cert, and while there are clearly three justices willing to overturn, Justice Roberts has indicated no such desire. Should the district or circuit court find the law constitutional however, the Supreme Court will have to take the case setting up the grand showdown. Should this happen - the result is unpredictable, particularly so as President Bush may have an opportunity to appoint at least one more justice.
However, there is another important part to this debate. During Samuel Alito's confirmation hearings several influential senators, including John McCain indicated that they though Roe was safe because America is a stable country, where such monumental changes are unlikely. I always found the argument a bit disingenuous. I understand why McCain uses it - its the only way for him to reconcile his presidential ambitions and anti-abortion views, but it doesn't make him correct. America is, and has always been, subject to significant transformations over short periods of time - particularly so when driven by the Court. Take the rights revolution for example - in a period of less then five years the courts, using cases like Goldberg v. Kelly and the hard look doctrine in Overton Park, largely re-wrote the administrative law playbook, radically changing the nature of our regulatory state. Similarly, Roe itself was a very sudden decision that shocked many. America is politically stable, but that doesn't mean, that it is not susceptible to huge shifts in social values and politics over short periods of time.
And the behavior of South Dakota's politicians indicates just that. Seeing an opportunity they are trying to ram through their vision of what society should be like, one that would be quite a radical shift to the country. They might not succeed, but that doesn't mean that its impossible....a view that many who relied on McCain's words best consider.
posted by Ilya Ehrenburg at 9:20 AM
2 Comments:
I'm actually curious to see what happens if individual states expansively outlaw abortions, and SCOTUS upholds such restrictions.
a. Most states where this is likely to happen have very very few doctors that perform abortions in the first place, so sch a move is unlikely to change much on the ground.
b. The right has upheld abortion as the most important issue bar none (does the defense of hetersexual marriage come close?) I suspect that this would eviscerate the movement.
Not only do you make a heavily compelling case about America, you neglected to include that part of the reason that Senators and other government officials have term limits is so that the public could potentially get rid of them. If these government officials don't reflect the opinion of the majority they are meant to represent it is not a kingship type of situation, they can be made to step down or removed. Is Roe v. Wade really threatened in the near future? I don't personally think so, there has been too much controversy to put it into affect in the first place. So if the saying is true that the harder it is to actually get something on the books and enforced it is just as hard to remove it, then it definitely applies here when indeed it does reflect the majority's opinion. A more legal perspective? Can't really provide, only a lay woman's one but good to share and hear too.
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