Now that Sandra Day O'Connor has left the Supreme Court the cultural conflict over abortion is heating back up. The Supreme Court has decided to hear a case next Fall that will determine whether a federal ban on partial birth abortion will be upheld. Partial birth abortion is called that because it involves a procedure:
...generally carried out in the second or third trimester, in which a fetus is partially removed from the womb, and the skull is punctured or crushed.
You might think that sounds a lot like infanticide. If so, you understand why the legislature has been trying to ban the practice for fifteen years. Two previous attempts were vetoed by President Clinton who could see no contradiction at all between this practice and the widespread belief that we live in a civilized nation.
South Dakota has passed legislation that would ban all abortions in the state except in cases where the mother's life is in physical jeopardy if she takes the baby to term. Challenges to this law will surely wend their way through the court system and, in due course, make their way before the Supreme Court. If so, there are four almost certain votes to strike down the South Dakota law (Ginsberg, Souter, Stevens, and Breyer) and two almost certain votes to uphold it (Thomas and Scalia). The three unknowns are Kennedy, Roberts, and Alito. If just one of them joins the four liberals then Roe will survive, at least for a few more years. The most likely of the unknowns to join the liberals seems to be Anthony Kennedy, but it's not clear that he would. If there's another retirement (Stevens and Ginsberg are most likely) before South Dakota makes it to the Supreme Court then everything will depend on who takes the retiree's place. The Alito hearings will seem like a cub scout initiation by comparison to the hearings that that nominee will face.
Even if the court eventually fails to sustain South Dakota's law the issue is going to keep coming back. It required a complete abandonment of common sense for the majority in Roe to find in the constitution a justification for taking abortion law out of the purview of the states and enough state legislatures are willing to test the newly constituted court that more of them can be expected to advance their own attempts to curb the practice of abortion.
It has always intrigued me that pro-choicers were so afraid to have states decide this issue. Up until recently they have insisted that the overwhelming majority of people in this country supported a "woman's right to choose," but if they truly believe this, why do they worry about allowing state legislatures, which are quite sensitive to the will of the voters, to legislate what the law on abortion will be in the several states? They should be confident that the legislatures will vote to keep abortion safe and legal. They are not confident, however, because they don't really believe that abortion rights enjoy the popularity and support that their rhetoric claims they do.
If Roe is ultimately overturned then the people will decide, through their state legislators, whether, and to what extent, they want abortion legal in their state. It'll be refreshing to see law actually being made by the people elected to perform that task instead of by nine justices who are accountable to no one.
