South Dakota did advocates of Roe v Wade a huge favor

[dsc]

In 2003, the US Supreme Court finally overturned anti sodomy laws in Lawerence v Texas, but there was a case before Lawerence. In 1986 a man named Hardwick was arrested in Georgia for sodomy so that the cops who were searching his home when they caught him in the act of sodomy could get evidence of the real charge they were after him for. The found that evidence and thus dropped the sodomy charge. Hardwick's lawyer decided to try to get the sodomy charge invalidated and thus the evidence thrown out. Thus was born Bowers v Hardwick in 1986 which stated that states had a right to ban sodomy. That disasterous case was a case of gay right activists moving too far too fast. We were stuck with that horrible precedent for 17 years due to that mistake.

Now South Dakota has handed the exact same gift to pro choicers. Kennedy is certain to vote to overturn such a broad law and uphold Roe v Wade as a precedent. Pro lifers may be dealing with the South Dakota precedent for years after they otherwise could have overturned Roe v Wade. I don't know what the people behind this bill were thinking, but they delivered Christmas in February to pro choice America.

[Warpy]

1. I sincerely hope you're right about that

but I honestly don't know where this court, oversupplied with Catholic true believers, will go when this law comes before them. Undoubtedly it will be struck down by lower courts. This court may refuse to hear the case at all, or they may act on their religion instead of precedent and uphold it.

We just don't know what they will do.

[dsc]

2. Kennedy has been pretty clear in the past

He believes that abortion can't be unduly burdened. So far none of the restricts litigated during his time on the court have been undue burdens in his opinion but he hasn't had a case that tried to outlaw abortion widely like this law does. No way he will uphold this and that gives Roe v Wade another support if Stevens or Ginsburg get replaced by people who would favor overturning.

[Ignacio Upton]

3. Precisely

While I was/still am worried about how Alito will impact the court, Roe v. Wade will go from 6-3 to 5-4. However, I disagree that Roe v. Wade will be intact if Stevens or Breyer or Ginsburg retire (or if Ann Coulter poisons Stevens as she has joked about doing recently.) However, I can't see the right trying to throw challenges at Roe year after year until they get the result they like. Issues like Roe and Planned Parenthood v. Casey only get hearing every few years.

[dsc]

5. Just like Bowers it will freeze action

In 1994 when Romer was handed down they had to do legal pretzel twists to avoid Bowers. Had we simply waited for White's retirment to litigate the sodomy laws we would have been in far better shape. Supreme Courts don't overrule precedents willy nilly and nearly never do they overrule ones that were affirmed just a few years before. This is a gift for the pro choice side.

[blm]

4. I agree. They played their hand too soon, which is probably what

the hierarchy of the GOP wanted - the ones who really don't want RoevWade overturned on their watch as part of their legacy.

[Charlie Brown]

6. I'm not even sure if Roberts would support a law that excluded rape/incest

That would set a horrible precedent.

[dsc]

8. There is that problem too

though I think he might well support such a law if his philosophy is that states should be setting this policy. Had they given the exceptions it would have put Kennedy in an interesting position. I still think he would vote to overturn the law but would be a little less sure.

[cali]

7. exactly right.

It is a huge gift. I've posted two threads to this effect in the last couple of days. Most folks don't seem to view it this way. I think it's a great wake up call to the slumbering pro choice masses.

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=511598&mesg_id=511598

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=364&topic_id=498881&mesg_id=498881

[cali]

9. I forgot to add that

it's highly unlikely that the SD law will make it to the SC.

[dsc]

10. It likely will

Someone will sue for lack of ability to get an abortion or lack of ability to provide one.

[cali]

12. No it won't.

There'll be an immediate in injunction. Fed laws trump state laws. It'll subsequently be knocked down in its entirety in Federal Court. The SC, in all likelihood will not grant it cert, although it only takes 4 justices to do so. Roberts knows that he doesn't (if he's so inclined) have the votes to overturn Roe, plus this is, as you pointed out, a truly awful test case. They won't want to touch this with a ten foot pole.

[dsc]

13. I see Stevens, Ginsburg, Breyer, and Souter

voting to grant cert.

[cali]

14. You do? Why?

I can't see that at all.

[dsc]

15. to get the precedent on the record

This is a gift for the pro Roe v Wade side. A 2006 precedent upholding Roe v Wade would likely save Roe of Bush gets another justice for a decade or more.

[pstokely]

17. It will

by wasting SD tax payer dollars

[Charlie Brown]

11. SD's constitution appears to ensure a lot of civil liberties

http://legis.state.sd.us/statutes/DisplayStatute.aspx?Type=Statute&Statute=0N-6

Maybe advocates should sue in SD first.

[AndyTiedye]

16. I Wouldn't Bet The Reproductive Freedom of Our Citizens on That

We could lose it all very quickly with this court.