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Why South Dakota won't lead to Roe review

If South Dakota's governor signs the bill passed by the legislature this week, outlawing abortion except when needed to save the life of the mother, it will generate a fight in federal court, which is just what the sponsors intend. They hope their vote will prod the U.S. Supreme Court into revisiting, and ultimately overruling, its 1973 Roe v Wade decision. 

But it's unlikely that such a scenario will play out, and here's why. There's no doubt the governor's signature will spark a legal battle. Planned Parenthood has already announced that it will go to court immediately. Both a federal judge in South Dakota and the federal appeals court will almost certainly declare the state law invalid, because both are bound by the Supreme Court's abortion decisions.

The state would then ask the Supreme Court to hear the case. But the justices are unlikely to do so for several reasons. The court's more liberal members who support the Roe v Wade decision -- Justices Stevens, Souter, Ginsburg and Breyer -- might think it would be good to take the case and strike down the South Dakota law to discourage other states from trying a similar gambit. But can those four be confident that Justice Anthony Kennedy, who has supported Roe in the past, will provide the crucial fifth vote this time? He joined the dissenters six years ago when the court struck down Nebraska's "partial birth" abortion law. Will he be with the Roe supporters this time? 

Conversely, it might seem plausible that the court's known anti-Roe justices, Scalia and Thomas, would want to take the case to strike Roe down. But can they expect Kennedy to vote with them? And are they certain that John Roberts and Samuel Alito are prepared to overturn Roe, after both said during their confirmation hearings that Roe was a precedent worthy of respect? And there's another factor: a decision against South Dakota could forestall further challenges to Roe for several years.

In short, neither side can be confident it would have the necessary five votes to prevail.

A Supreme Court expert, appellate lawyer Tom Goldstein of Washington, D.C., offers another reason the court is unlikely to take the case. While the justices make legal decisions, they are fully aware of the political impact of their actions. Even assuming Roberts and Alito are prepared, someday, to overturn Roe, they might well think it would be perceived as blatantly political to reach out, so soon after arriving at the court, to the first frontal assault on Roe that comes their way. They might worry that such an action would be perceived, Goldstein says, as a payback to the Bush administration.

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COMMENTS

"Abortion 'IS' a womans 'Choice' NOT a mans, why, very simple, when was the last time you heard of a 'Man' needing or wanting one?"

When was the last time you heard of a woman getting pregnant without sperm from a man? The man has a vested interest in the life or death of his offspring and, thus, has a say in the issue if not in the individual circumstance.

Abortion "IS" a womans "Choice" NOT a mans, why, very simple, when was the last time you heard of a "Man" needing or wanting one?
This all about the cult Religious Right attempt to "Dominate" everyone with "Their" convoluted beliefs and Ideologies and nothing more.
If you will notice, a "MAN" signed this piece of paper and if you "Pay" attention you will discover that almost every group that opposes a womans right to chose there is a "Man" lerking in the back ground.
All of the women who follow blindly behind these guys are dumber than dirt because they are "Still" being dominated by "Man" as in "you will Obay".
RFJ1

In all these responses it seems that very few have a sense of the real world. There are thousands of children waiting to be adopted and in need of families. Thousands more living in poverty. As a society we cannot take care of the many in need that we now have. If not for Roe v. Wade it would be far worse. An abortion is the most difficult choice a women can make. I ask all pro-life people to answer this are you willing to take in the potential child if it is carried to full term? Are you so worried about life that you donate to charities and have adopted a child with out a home already? If we cannot take care of the ones already born how can we take care of those who are not yet born but forced into this world by those who will never lend a helping hand.

Abortions & guns. The real problem is with the political parties we vote for. There are more than 2.
republicans want to legislate morality, democrats want to legislate their fantasies. I would like to see the independents or libertarians in charge for 4. they cant do any worse.

This battle over abortion has really made me sick. The government believing that it can take away what women struggled for so long to obtain. And all of these so-called Christians parading around with their holier-than-thou attitudes, pretending they know what is best for the entire world. It is because of these sort of attitudes that we fight wars. And what is with this whole "pro-life" movement? We are ALL "pro-life." It's just that those of us with any semblance of compassion in our hearts feel that a woman has the right to choose what happens with her body. Keep your religion and your God out of my law.

My comment will probably not be read but here goes. First, I am a lawyer and against abortion. Second, most law reviews including the ivy league law schools have been dead against the "viability" logic of Roe v. Wade. If it were left up to the legal scholars it would not stand. Third, like most poorly based doctrines it has been expanded to an absurd conclusion, namely, the "partial birth" abortion. So, will the Supreme Court hear this matter? In my opinion, it will not. Invariably, when push comes to shove for the really hard "political" decisions such as Dred Scott the Supreme Court blows it. It should have never decided the case to permit abortion in the first place. Like Dred Scott, they blew it when they even heard the case and I don't see the courage to reverse it. Nevertheless, for those who think something that is legal is also moral simply look back at slavery. A slave was a piece of property, so why should it be heard? Likewise, a fetus that is not viable is also not person, maybe it too is a piece of property and should not be heard? Two hundred years from now this period of time will be looked upon as barbaric, just as barbaric as slavery. So, for those who uphold a woman's right to chose should easily understand a master's right to his own property. Afterall, property is property isn't it? [P.S. Wasn't women also considered property in 1776? Maybe this argument should be added to the idea to expand the concept that even viable fetus' should be considered property? If added then abortions could be all the way to birth?What do you think?] Simply put ladies and gentlemen, by categorizing humans based upon viability we have created classes of subhumans on equal par to that of slaves. We have also opened our legal system to deciding the issue of people in their old age. After all, if the person is not viable, i.e. going to eventually die, then why shouldn't society help ease their pain as they die? The truth is that I have never met a person who was dying that actually wanted to die and doctors are not Gods when it comes to predicting death. Nevertheless, if the doctors say the man is not viable why not "ease him" along? [P.S. For those idiots who think I advocate this, get a brain.]So we come down to the legitimacy of the issue. It is legal to have an abortion at least for now. By the way for those of you who think that civil rights is a modern issue. Civil rights legislation existed under Grant's administration. However, in the 1870s our Supreme Court struck it down. Today, the Supreme Court allows recent civil rights legislation to stand. Nothing has changed except our society. When our society changes abortions will become illegal again. Unfortunately, today is not the day.

I did not read all the pro-choice rhetoric as it was all pretty redundant, anyway. Some points I would like to make: 1. It is NOT a woman's perogative to kill the life within her. It never has been and it never will be, regardless of Roe v Wade. When she chooses to do so, it is not HER body she affects; it is the innocent life within her. 2. Of COURSE abortion affects the father. What father do you know who is not affected by the death of his child?! 3. The "back-alley, clothes-hangar" abortions of the past are pure myth. Check out Dr. Bernard Nathanson's book. For those who don't know, he was instrumental in getting Roe v Wade passed. In his book, admits that the claims made about unsafe abortions (ALWAYS UNSAFE FOR THE BABY) were deliberate lies with the usual motive - greed. Just read his book, ok? 4. "We, the people" did not pass Roe v Wade; the liberal Supreme Court legislated that all by themselves. 5. Abortion is NOT provided for in the Constitution. Actually, if anyone would care to really read that - and the Bill of Rights - one would note only PROTECTION for ALL under the law. They do not say one must be born before being protected. And finally, 6. Pro-life means just that, which means no death penalty or euthansia. War is something that no one wants, but is hardly the same thing as killing a defenseless person for the sake of convenience. And, oh yes, less than 1% of all rapes result in pregnancy. There are many more people than that more than willing to adopt those unwanted children...and yes, many of us have offered just that. Lastly, the majority do NOT support abortion; that is only the lie/propaganda put out by Planned Parenthood and others of their ilk.

Abortion is wrong unless it is to save a life, I would think that if a woman was raped or a victim of incest that her mental health would fall under saving her life since a woman needs good mental health just as much as a healthy heart or kidney. I think it is wrong to tell rape victims or incest victims that it would not be saving their life in alot of cases to abort. Some woman can carry the baby in that situation, but some can not and we need to recoginize that. But I think using it as a form of birth control is beyond comprehension. I do not want to pay for abortion through taxes for the sake of birth control. I do not believe in it and should not have to pay taxes to pay for another womans choice to abort. You choose to have sex, then choose to pay for it, one way or another. If Roe is not overturned, then shell out the $500.00 and take care of it yourself. Or better yet, shell out $50 for birth control, and keep it from happening in the first place.
Also the pro-right group, no offense but you think religious people have hang ups, I was preg. with my 1st child, a girl, when several doctors refused to give me care for her because of medical problems. They thought it was easier to just abort and use my "right", I disagreed. I did not care if I risked my life, I wanted my baby. To me the four months spent in the hospital with having surgeries and then the next four on a machine to sustain me and my child using my insurance was very worth it to me. They thought my right to abort should supercede my wanting a baby. But despite thier dire predictions, I had a healthy pretty baby girl, who is now a great and smart five year old. I had to check out AMA and go to St. Mary's so that my "right" to keep my baby was respected. I was not young, I had a degree and a job, insurance, but because of health issues they thought that I should just abort and adopt, but I am glad I did not let them pressure me into it. I now have two great kids and I love them. They are my future, they are your future. They will pay taxes, be the ones who will take care of us in our old age, yours can to if they are born and not "aborted" just so you can feel you excerised a right for the sake of convience because having a baby after conces. sex became to big of a hardship for reason other than rape, protection of life of the mother, or incest. And no offense my children were never just tissue, I have the ultrasounds to prove it. They had heads, feet with little toes and hands with tiny fingers and a heart that beat like a butterflys wing. All that before birth! And since, even better, peanut butter stains and all. If sex is the spice of life then kids are the great entree that that spice created.

I wonder how many of the people who label themselves Pro-Life are against the death penalty.

First of all, I'm all for finding a way to eliminate the abortions that are being used as a form of birth control. However, what about that 15-year-old girl that had sex because her boyfriend told her that he would leave her if she didn't do it. What if this same girl comes from an abusive environment? Is she supposed to go home and risk being beaten and losing the baby that way, or would it be better if she went into a clinic, went through their 24-hour waiting period, and had the abortion done safely? It doesn't take a doctor to see that abortion is necessary in some cases, including when it would save the life of the mother. In the end, I, as a woman, have to settle my choices with God and no one else. Frankly, it's no one elses business what I choose to do with my body. Isn't it the same people that say abortion is wrong that also say if you ask God for forgiveness that you will be forgiven? Let's take that into consideration before we go around judging anyone else.

It's interesting that those who are pro-abortion hold that position in spite of God. Those who are anti-abortion hold that position because of God. The former is in the majority. The latter is a remnant.

THE BIBLE says nothing about abortion. Thou shalt not kill should also apply to capital punishment and war! How can you be pro-life AND pro-war!!! In fact, for centuries the Catholic Church allowed abortion up until the 1860's when more soldiers were needed to promote French conquests - and a weak Pope agreed to make abortion a cardinal sin if it was also agreed that his word was henceforth infallible. So, folks, the bottom line is that the abortion issue is POLITICAL. If Roe v Wade is overturned, we in the U.S. will be another step closer to the Taliban regime. I am disgusted that the most vocal proponents of a ban on abortion are men. Also, in 1959 I NEEDED a late-term abortion, but of course didn't get it. The results were horrendous!

Life is precious in any form. Life should be treated with respect and dignity. Even a person conceived from rape is thankful they were allowed to live. There are thousands of women who would gladly take a child from an unwanted pregnancy. I am one.

It seems like pro-life people are all religious people, so this would more or less make it into a religious case. But my question is: What about us that are not religious? I belive in myself and what I do. Why do I have to live by religious laws that people are setting up according to what the bible says? Abortion is a choice that every woman has the right to make. If a woman does not believe in abortion then she should not have one.

I think we are looking at this case from the wrong end. We have to start educating our children about sex, birth control, STD's, pregnancies, rape, mutual respect in a relationship etc etc. Kids are curious and they will try anything that they do not know everything about. With all the sex and violence on tv and the internet, if they don't know what will happen if they have sex then why would they stay away from it? They are CURIOUS!!! As much as tv advertise that we need to teach them about smoking and drugs, we need to do the same about sex! This way abortion rates will come down. And adults that use abortion as birthcontrol, that is just wrong. We need to come up with a better solution there as well. A ban of abortion is not the solution. How about free birthcontrol for all women? Birthcontrol is VERY expensive and not for low income families with no insurance.

Religious freedom founded this country, but the imposition of one version on everyone else will destroy everything we've worked for - so much for freedom of any choice not just this one. The old rich men in their closed meeting with "Christians" loaded with cash should not dictate the rules for everyone. Even further, a woman's right to choose will not go away with one law - they will go to Canda, Mexico any other country in the world since these procedures are permitted elsewhere in the world (we'll be the only prominent nation to ban them). I'm not advocating that we become China with only one child per family, but there are reasons that one would prefer not to have a child. The main ones are: 1) Detrimental to the health of the mother (for those who don't think this should be allowed - should two have to die because a majority of those women would die before enough time had elapsed to give the fetus a chance); 2) Rape, a brutal and psychologically damaging crime (for those who don't agree and say the child shouldn't be punished - have you studied how the health and well-being of the mother affects a newborn? If the mother is traumatized and hates her condition, don't you think other things will be done to harm or sedate herself that could affect the health of the fetus? And should she suffer bearing the creation of a horrible event to remind her of it everyday if she raises it or to haunt her everyday if she puts it up for adoption wondering if the child will someday show up wondering why it was given up?) or lastly 3) Incest (I've seen the effects of 14 year old pregnant girls that are forced to carry their childern to term - watch a street corner in L.A. - they have no future most will not finish school and will not be able to provide without public welfare, they have no say because if they're family made them carry it to term also means they did nothing to the person who destroyed her innocence, and they resent the child for all of these reasons - what a healthy place for a child to be raised? Also believe that if a parent would force their child to bear this they will not allow it to be put up for adoption - they think like those who believe God says abortion is murder no real common sense at all or care for the wellbeing of their loved ones just dogmatic responses. And of course I haven't even mentioned the penchant for genetic defects caused by this). Of course these reasons don't touch on other more personal reasons that every individual has to consider when having a family - financial resources; work/daycare; education; personal goals; and whether or not they're even parental material. These are important decisions and it takes an intelligent person to look at where they're headed and what they want out of life to realize if they will be able to give a child everything they need or just relegate them to a Nanny/Latchkey/Lastthingfromtheirmind kind of life. If a child is to be born, they deserve to be planned for, taken care and loved above all. They should not be brought into a household already teeming with children where the parents receive a check from the state for each one born or a house of busy self-important people who only see them when they aren't jet-setting around the world with their fabulous friends and believe their caretaker is the only person who loves them. Yes there are loving households awaiting to adopt a newborn, but have those great people even looked at our overloaded foster care systems and considered those once lovely newborns that are now in grade/middle/high school? Don't those children deserve to be fought over like these unborn fetuses? Looking at the responses it doesn't like we care about what life we force on the child, we just want to force Life onto it and maybe just maybe that isn't a good enough answer to this debate. Just because two people put forth the effort to conceive without considering (or their contraception failed), doesn't mean that continuing a mistake is a good idea. I don't recommend everyone run out and get an abortion when the condom breaks though some might say that's what the morning-after-pill is, but at least consider what the future might bring and look at all the options. Remember the fetus/mother relationship is a parasitic one. That comparison might enrage some, but it's true since the fetus requires feeding off the mother as a host. So it is within the women's right to cast off that relationship since we would also allow ourselves to kill a tick, hook worm, etc. There are animals that opt to abort at will when something isn't right about the timing - why would God create something that could do that? So, why is it that Life is always a good thing? Some people's lives are such miserable existences that they wish for death - should a child come into that, should a child be born into a family that didn't want it, and when those families tire and decide not to kill it (please see recent news on the many children who have died at the hands of parents or parent's significant other's) but place them for adoption - will there be enough people out there will to take a 6 year old, 11 year old or 16 year old who needs a family? The sad truth is no and the reality is not every life should have to be lived especially those existences that people wouldn't wish on anyone. Could we better spend on time educating people on the responsibility it takes to care for a child? YES. Should we accept that abortions will happen whether we want them to or not? YES - no one can control everyone. Should we offer more options to those who might come to face this decision? YES. Why should people who know they don't want children have to wait for a mistake to happen before they'll be permitted to be sterilized? Why should we continue on abstinence only teachings - if you or someone you know was messing around in school why do you think your own progeny wouldn't be? Despite our best efforts or denial, it's going to happen so better to prepare them now than wait for an unwanted pregnancy to unbury your head. Intelligence and understanding are needed to alleviate the number of unplanned pregnancies that happen and abortion should remain as an option of last resort. If we did a better job educating people on responsibility and their options before this maybe there wouldn't be as many taking place.

I favor abortion for the simple reason that it gives society a way to stop the birth of a child to a mother who clearly doesn't want it. Equally importantly, she has demonstrated an inability to manage herself to keep the child from being conceived, with instances of force (rape,etc.) being obvious exceptions. Who believes such people would be mothers capable of successfully raising a child, with all the care, attention and accountability that role requires?
Human rights are critical in these matters, of course, but I for one want to hear more discussion about human obligations. There are far too many children being born to people who neither want them nor have the ability or desire to care for them. Abortion is one way, albeit crude and distasteful to some, by which we can reduce the number of humans brought into this world with little or no chance of having a fulfilling, productive life.

Just before joining the Army in WWII and being shipped oversees to the Pacfic, fresh out of nursing school, my mother got a job at a northeast hospital where the patients were primarily affluent, or at least upper middle class. One thing my mother found very curious was the number of hymenectomies the hospital did on a weekly basis. What was even more puzzling to her, was these hymenectomies were many times being performed on women in their 30s who were also mothers. She finally got the nerve to ask one of the doctors about it. He looked at her with a rye smile and said "I know your young but are you really that naive?"
If Roe v. Wade is overturned, it will only effect those women who are working class or poor. Women like me will have connections or can hop a plane to another country. Why hard working Americans continue to let the wealthy put restrictions on them using the working folks own hands to do it, is a mystery to me. What is more of a mystery is these intimate personal decisions, not to mention the decisions that will determine the quality of their future and the limits of their opportunities are being put in the hands of an administration headed by a member of a dynanistic family, who can neither relate to their situation or whose circle of friends, family and collegues will never be impacted by these laws that regular working Americans seem so eager to pass.

I could get into why I think GOD people are misinformed but im not going to do that. Its their right to believe anyway they want. Its not their right to pass those beliefs onto others though.

If religion is allowed to rule our land and control our freedoms we are headed for a dark time in america. we've already been there with linchings and burnings, etc... why go back??

If we start taking away womens rights where does it end?? maybe by making men be castrated at birth?? and the rest of them handing in their gonads at the door??

Freedom is what this countries based on I think we should keep it that way. Let people be free to live, beleive, and make their own choices and for gods sake do not govern from the bible.

well I guess we know where we should dump all the rapists... South Dakota... I'm sure once they have as much crime as the more... ummm... civilied cities of this country they'll come back to their senses. Oh yes, I said city for a reason, ever see the census for South Dakota?

I am 100% pro-life and I'm sure God is. How do I know? Because of what Jesus said:"This is MY BODY given for you." What I've been hearing from pro-abortion supporters is: This is my body I won't sacrifice it for anyone! I think we have devalued human life since we legalized abortion. We not only kill unborn;we have started with the Terry Schiavos; the terminally ill; who next? The elderly? What will happen when there aren't people working to support Social Security;because we aborted them. What have we taught the next generation? What will become of us when we can no longer work? When we become a burden on society?

Some new thoughts:

1. If you don't like abortion, don't have one.
2. Roe v. Wade will NOT be overturned, at least anytime soon. In fact, the Republicans whom the religious right puts in power don't really give a damn about abortion. They USE these votes and manipulate them to keep them in power. Everyone should read Whats the Matter With Kansas? It illustrates my point perfectly.
3. If you want to outlaw abortion, how about guarenteeing healthcare and a good upbringing for all the unwanted children who would've been aborted? Oh wait, I'm sorry. That's socialism.
4. How about we talk about an issue that will more directly effect our lives, like the economy?

As a divorced mother of 3, I had to make a very difficult decision. Being in an abusive relationship at the time, having two forms of birth control fail, and due to other 'female' health issues putting me into the high risk pregancy catagory with probable prolonged bed rest. And no, the father was not willing to help financially, I was supporting him as well as my children. I had to consider the welfare of my children who I am the sole provider for. Was I to lose my job due to bed rest for 20+ weeks, FMLA only protects your job for 12 weeks. Who would provide them clothes or food if I wasn't working? The state? It is not their job to provide for my children, that is my job. And while I was trying to be responsible with more than one form of birth control, it doesn't always work, in fact two of my kids are 'pill babies' which is why I used two methods now. While I believe everyone has to live with whatever they choose to be best for themselves, I won't tell people that their decision is wrong because you have to live with your own decisions, just like I have to live with mine. What may be right for me is not right for someone else. And if the right to choose to end a pregnancy is lost, are you willing to raise that baby? No one seems to be stepping up to that plate. And as for not making any provisions for rape/incest, you are not thinking clearly. Rape/incest is traumatic enough, do we really need to make victims suffer any more? And what about a teenage girl who makes a mistake? Who is going to support her and her children because she is unable to go to school to get the skills necessary to support them? Who is going to pay for daycare? Diapers? Formula? Doctors visits? If the government wants to limit abortions, then the government needs to provide medical for all children so that they may grow into productive adults. There are way too many children growing up in poverty and in the foster care system that the government seems to forget about. Why should we add to a growing population of unwanted and uncared for children. Please remember the children that are already here, they should take precedence over anything else. We would have lost everything that I have worked very hard to obtain had I not been able to end a very unplanned pregnancy. And had my circumstances been different, my decision might have been different. I am just glad that I had that choice to make.

I HAD a friend named J.H. We live in Sioux Falls, SD. She lied to her parents, in laws and to her own children. She never told them she was pregnant out of wedlock with her third child. She insisted that I keep this lie secret. She insisted I accompany her to Omaha, NE for an abortion. She insisted I believe her lies that she was only 9 weeks along. I went online and put in her date of her last period. I researched abortion. I talked to the Alpha Center. I am not a religious person. I came to the conclusion on my own that I could not help my friend by driving her to Omaha, NE a week and a half ago. I had to listen to all of her rationalizations, etc for weeks. I had to watch her take goldenseal and attempt aborting her child the cheap way. She told me she had another abortion 4 years ago and was considering aborting her last child. I made my own choice-I didnt give her a ride. I made another choice. I dont want a murderer for my friend. I do believe it is murder of the most heinous sort. People go to prison for much less. Governor Rounds should sign this bill. The State of SD should defend this bill all the way to the Supreme court if need be. Murder, while it is a choice-should be illegal no matter the age.

I say it's a woman's choice. Period, end of story. Those of you who have had an abortion and now regret it, well, that happens. But do not now and try and stop another from getting their's if they so desire. As for the men out there putting their two cents, they will never know what a woman feels, so they can just rave on.

You said: "In short, neither side can be confident it would have the necessary five votes to prevail."

You are presuming that the justices cannot be bought or prevailed upon by favors from the current crooked administration.

Considering the present crooked admministration appears to have bought itself two elections, the first by vesting jobs and high salaries relatives of three justices prior to Mr. Alito's confirmation, there's no evidence that the fix isn't in, Sir.

You presume honesty when there's no absolute evidence that such a thing it exists on the SCOTUS any more.

I won't presume that much. I've seen so much bald-faced lying in the past 6 and a half years that I no longer believe anything sworn under oath.

It's very difficult to respect the highest court in the nation, when the leadership of this nation doesn't appear to respect the judiciary in general and when the leadership of this nation violates our Constitution and treaties signed on this nation's behalf daily.

I watched women my relatives knew die from septic abortions prior to the Roe V. Wade decision. I lived in Dallas and knew "Jane Roe" and the parties involved in the suit which led to the SCOTUS decision.

There are thousands of women, and men, in this country willing to violate any reversal of that decision in order to ensure that women's right to reproductive autonomy be preserved, with or without the benefit of a possibly crooked court created in great part under a crooked political administration.

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