Roe vs. The Mount Rushmore State

More from the Interfaith Alliance:

Supreme Court Says Church Can Use Hallucinogenic Tea
"The U.S. Supreme Court, saying law enforcement goals in some cases must yield to religious rights, ruled that the Bush administration can't block a New Mexico church from using a hallucinogenic tea.

In a unanimous opinion written by Chief Justice John G. Roberts Jr., the court said the 1993 Religious Freedom Restoration Act protects the church, a 130-member branch of a Brazilian denomination. The justices upheld a preliminary injunction barring federal prosecution of church leaders. Roberts, ruling in his first religious-freedom case, rejected the Bush administration's contention that only a categorical ban on the substance would adequately prevent abuse and diversion to non-religious use." - (Bloomberg, "U.S. Supreme Court Says Church Can Use Hallucinogen," 02-21-06)

--------------------------

In short, Roberts did what any good conservative justice would do. Congress had enacted a law clearly addressing cases like this (passed, ironically for right wing "religious freedom" types under a Democrat-led federal government) and Roberts applied it. What the Bushites were calling for was, gasp!, "legislating from the bench", asking the court to strike it down because it was a bad law, not a -valid- law.

Which brings us to South Dakota, which is preparing to directly challenge Roe v. Wadeenactingtign a clear ban on abortion.

Courts are conservative by nature. The 1973 Roe decision wasn't pulled out from deep inside the justices' nether regions. It came after eight years of litigation beginning with Griswold v. Connecticut, where the court overturned a state ban on married couples buying contraceptives. Brown vs. Board of Education came after twenty years of inspired NAACP-led litigation over the question.

Courts don't move fast. They base their holdings by extrapolating from prior holdings. In Roe it was extrapolating that if the state didn't have a constitutional power to tell folks when to use contraceptives to prevent unwanted pregnancy it logically didn't enjoy any power to tell women to have a child they don't want either. Becoming a parent is a private matter and should generally stay that way. But it took eight years for the court to move down that road, as the principle was extended through various cases on the issue.

Reproductive choice opponents haven't done any of this ground work. The best so far is a challenge to partial birth abortions, which arguably already sits within the time frame allowed under Roe to ban or regulate, depending on the specific facts of the law. I don't think, for now, the high court is going to grab this one case and run with it. It'll probably allow the lower courts to throw it out and move on, for now.

The irony is that abortions are actually declining, for good reasons and bad. The bad is that providers have been run out of a lot of towns. The good is that there's simply more access to birth control, preventing unwanted pregnancies. The ironic is that the one group where rates are going up are welfare-to-work mommas, who now have the same economic incentive as more educated have had over the last three decades to decide when to become a parent. Conservatives didn't think of that when they decided to ride the deadbeat mommas back into the workforce. Simple put, it's actually less of an issue now, and, like public opinion, the court might take that into account too.

So, South Dakota's exercise will be fun, but futile. For now. If Bush gets one more shot at the bench, then I'll start to worry.