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A Challenge to 'Roe'?

EditorialThe Washington Post, March 3, 2006

The South Dakota legislature's move to ban nearly all abortions does not pose an immediate threat to reproductive freedoms. Containing an exception to protect the life of the mother but none for cases of rape or incest, the bill is likely to serve, rather, only as short-lived moral preening by the legislature. But if the bill proves legally inconsequential, it is still troubling that a state legislature would pass such a categorical ban -- and that the idea appears to be gaining steam elsewhere.

Despite the intention of its authors, this bill seems unlikely to serve as a test case for Roe v. Wade . Assuming Gov. Mike Rounds (R) signs it, as he has indicated he will, you can expect lower courts immediately to block the new law. Particularly because there is no conflict among them concerning the legitimacy of an abortion ban, the high court will be under no obligation to hear the matter. Nor is it clear that the justices would want to. The court's more liberal flank presumably does not wish to revisit Roe . And those justices who would overturn it don't have the votes. Even if both Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. were to vote to overturn Roe -- and this is not a foregone conclusion -- five sitting justices have positions in favor of constitutionalized abortion rights. Barring further changes in the court's makeup, it is hard to see how this law could spell the end of abortion rights in South Dakota or anywhere else.

Yet the atmospherics are nonetheless disturbing. Mississippi legislators are contemplating a copycat bill, which Gov. Haley Barbour (R) has said he would probably sign, and other states may be moving in the same direction. Such bills, therefore, both offer a glimpse of what some state legislatures might do if Roe were overturned and create moribund laws that could suddenly go into effect if that ever happened. It is a mark of how far the Republican Party has shifted on this subject that potential presidential candidates feel compelled to sympathize with such measures -- or, at least, seem to. Sen. George Allen's chief of staff says that the Virginia Republican supports the right of states to pass such laws, though he declines to address the specific merits of South Dakota's bill. A spokeswoman for Massachusetts Gov. Mitt Romney said that, were he South Dakota's governor, he would sign the bill but make sure it includes exceptions for cases of rape and incest -- exceptions the bill pointedly does not include. The office of Arizona Sen. John McCain has made similar noises.

All of which makes even President Bush seem like a moderate by comparison, though most assuredly he is not a moderate on abortion. His position, he has emphasized, "has always been three exceptions: rape, incest and the life of the mother." South Dakota's law will not change the legal landscape on abortion, but it illustrates the extremity of what some antiabortion activists wish to do and the power they wield over the contemporary Republican Party.

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