ADDENDUM: Sticky Green Leaves, you miss my point: I fully support a vigorous and full-throated challenge to this pernicious law passed in South Dakota, as long as the challenge is mounted ANYWHERE BUT IN THE COURTS.
ANOTHER, SADDER ADDENDUM (3.13): Today, I've (re-?)learned, much to my despair, that there are Ann Coulters on our side, too. How embarrassing.
Of course, the world is talking about the recently-signed-into-law abortion ban in South Dakota. I feel for the women of SD, I really do, but I had hoped that this move on their legislators' part would remain a tacky political badge run up the flagpole, and nothing more. However, as I was driving home tonight from the 9:30 Club, listening to whatever BBC shit they have on NPR, I heard the news that Planned Parenthood is going to challenge the new law in the courts. This caused me to beat the steering wheel and shout, "Stupid, stupid, stupid!" several times.
Again. It's not that I don't sympathize with the citizens of SD who are going to suffer the deleterious effects of a law that flies in the face of Freakonomics and imbues rapists with special legal rights. It's simply that Planned Parenthood is embarking on the EXACT course the opponents of legal abortion WANT them to. Taking this matter to court is a fine way to make a big showy pageant of deeply held principles, but it's a trap--the path inevitably leads to showdown in the SCOTUS against a panel of judges that are, in all likelihood, not predisposed to rule in favor of abortion rights. It's the one battlefield where victory is certain to be denied and it should be avoided at all costs.
For years, advocates of gay rights paid the price for bringing their arguments before unfriendly Supreme Courts. I've no doubt that some deeply held feelings were expressed in lovely speeches, some of which must have been delivered with oratorical zeal. But the real world isn't Law and Order, where Jack McCoy convinces everyone to accept his point of view in the face of overwhelming evidence to the contrary on the force of a well-spoken closing argument. And when you lose in the Supreme Court, you shovel a heaping pile of unfavorable precedent down on your own head.
Right now, with South Dakota's laws on the books, the correct course of action is to make sure no plaintiff of any sort challenges their law. I know that sounds like crazy talk. But right now, this anti-abortion buck stops at the South Dakota border (though I'm well aware that other states are considering moving in the same direction--sadly, these states will also have to be sacrificed to save abortion rights everywhere else). There is nothing more the opponents of abortion can do about it. An abortion opponent would, obviously, be unable to claim the law created a harm or an undue burden on themselves. As my erstwhile future Retainer-for-Life, points out:
So yeah, to get into court again in the first place, the plaintiff would need there to be an actual case (see Constitution re: cases and controversies) and have standing (i.e. be able to show that she herself would suffer injury because of a law)...and then a woman who was pregnant and wanted an abortion would be able to file suit. (Note: women generally have babies within nine months of conception, so this kind of a case is what we call "evading review but capable of repetition" -- it will never be ripe the whole time it's going through the court system, but we let that slide, if you will). An abortion opponent could not, in good faith, be the plaintiff, because the right needs to be infringed and someone needs to challenge the infringement, so why would an abortion opponent do that?So, only a pro-choice plaintiff could practically challenge the case. At this point, anyone who would do so would simply be serving as "a brilliant ally to their own gravediggers," to quote the eminently quotable Milan Kundera.
What should Planned Parenthood do? Rather then expend money in effort in a shameless waste that will, in all likelihood, end in total defeat in one fell swoop (or, in all fairness, bring that possibility a step closer*), abortion-rights advocates should take the sensible step of making the anti-choice winners pay the price for having won. They should bring as much pressure as they can afford to bear on the legislators who gave this abortion ban its life and chase them from office. Barring that, they should simply let South Dakota twist on the withering vine of their tax base, letting the state buckle under the weight of having to care for unwanted children and all of the malicious consequences cited by Steven Levitt.
Additionally, proponents of abortion rights need to employ that time-honored conservative idea--federalism--to their advantage, and press friendly states to uphold pro-choice freedoms through legislation, which, frankly, they should have been doing for years. Certainly, such laws could be challenged, but at best, the current bed of judicial precedent favors such legislation and, at worst, it would put the SCOTUS into a sticky situation, seeing as how honoring South Dakota's legislative decision while simultaneously denying a pro-choice leaning state's similar decision would put this conservative court at something of an apocalyptic self-disconnect where states' right are concerned.**
More than that--we must think realistically about South Dakota. This is a state that had one functioning abortion clinic that served a mere 800 women each year. For all intents and purposes, South Dakota had abortion well nigh banned well before today. It's a cold comfort to those effected by the law, but the inconsequential gains of Roe in South Dakota are not worth risking the entire kitty.
*Outside of states that have trigger laws tied to an overturn of Roe, a mere decision by SCOTUS to toss Roe is insufficient to bring a blanket abortion ban down upon the United States. I hope you know that, at least. As my loyal retainer relates: "The worst the SCOTUS could really do after all that is say, 'No, we were wrong about the undue burden thing. You people have a bunch less substantive due process rights than we said before. States, you can totally unduly burden pregnant women who want abortions pre-viability. Feel free.' Even then, it's still up to the state legislatures, so you might have SC and TX and unholy places like those severely or maybe only moderately restricting abortion rights pre-viability. Of course, you'd also have CA and NY and other such places who wouldn't move on it. So you see, it actually isn't that easy to undo Roe, and even if they did, the states make the call. Which is why it is really super important to focus on getting the right people into the state legislatures." [Emphasis mine, added for a particularly astute, if slightly off-topic, point you should think about this election year.]
**The bad news scenario (this of course changes the optimism of the above footnote as well) is that we all know that we are dealing with an administration that has already proved itself able to accept multiple apocalyptic deviations from the set of ideas known as conservatism. You should know that while Justice Antonin Scalia has recently said that people who believe in a "living Constitution" are "idiots," that hasn't apparently stopped Scalia from deciding that a quietly beating heart--or perhaps acute zombification!--exists in at least one portion of the Constitution: the Commerce Clause in Article I, Section 8. For more on that, consult with Glenn Greenwald.