Eminent Domain

There's been a fairly interesting development in the battle over the new abortion ban in South Dakota. If you are unfamiliar with the law, it...

...bans nearly all abortions, even in cases of incest and rape, and says that if a woman's life is in jeopardy, doctors must try to save the life of the fetus as well as the woman.

When it passed, I predicted that a court challenge would be filed almost immediately, the law would be struck down, then it would work its way up the court system through the appeals process. It turns out that there may be other plans...

But officials with Planned Parenthood, which operates the only clinics in South Dakota that provide abortions, said a lawsuit may not be filed immediately.

Instead, abortion rights supporters may try to take the issue before South Dakota voters in November. State law allows ballot referendums seeking to overturn legislation.

"When you take things to the courts you don't have the opportunity to engage the public in the process. You don't have the ability to build a movement," said Planned Parenthood spokeswoman Kate Looby.

This is an interesting move by Planned Parenthood. It would be fairly easy to mount a court fight. The Roe and Casey precedents are secure, and I doubt they are going anywhere soon. There are only two known votes against Roe on the Supreme Court, possibly four (depending on how Chief Justice Roberts and Justice Alito vote). The referendum plan is interesting because it shows that Planned Parenthood is actually thinking outside the box. They are trying to get the public mobilized through direct democratic action. In many ways, creating a movement is much smarter than just filing a lawsuit. It forces the issue into public debate and discussion. Planned Parenthood is betting that they'll win the debate. It's not a total gamble, because a lawsuit can still be filed (and will win).

Why the change in tactics? Well, it's possible that Planned Parenthood thinks that Roe is actually in danger. I found this part of the article interesting...

With two conservative justices recently appointed, and Republican President George W. Bush expected to get at least one more appointment before leaving office, abortion opponents believe the court would be primed to overturn the 1973 Roe v. Wade decision that established the right to abortion.

Now even Reuters thinks that President Bush will get one more Court appointment. That could be enough to hit the magic number of five.

Is five really enough though? Sure, it's enough legally, but is it enough politically? I've had conversations with my fellow law students about this. Imagine you are on the Supreme Court. You think that Roe is bad law and should be overturned. You also worry about the fall out from overturning it. Will the public be inflamed against the Court? Should that even matter when a Justice makes a decision?

I know that Scalia and Thomas would overturn it in a heartbeat. But what about Roberts or Alito or New Justice X? When the Casey case was before the Court in the early 90's, it was rumored that Justice Kennedy was going to vote to overturn Roe. The notes of Justice Harry Blackmun, released in 2004, state that Kennedy originally sided with the four Justices that voted against Roe. Why did he change his mind? Well, you'll have to ask him. Personally, I think that politics came into play. The joint opinion in Casey (authored by Justices Kennedy, O'Connor, and Souter) states that "people have organized intimate relationships and made choices that define their views of themselves and their places in society, in reliance on the availability of abortion in the event that contraception should fail". They were worried about backlash.

I stand by my belief that Roe-Casey will never be explicitly overturned. They'll probably be chipped or hacked away at by the Court, allowing more restrictions. But a complete overruling is probably too drastic an act. The Court is a political body, not just a legal one. They'll tread lightly on this subject for now.