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March 8, 2006

South Dakota’s effort at a challenge

Filed under: Constitutional law, Religion and law — CL @ 10:23 pm

Jack Balkin has this to say about the new law in South Dakota:

Many are now wringing their hands over South Dakota’s new abortion law, fearing that it means the end for abortion rights in this country. But the people who should really be cowering in fear are Republican political candidates. For South Dakota has begun the process of undermining the Republican Party nationally. . .

Most Americans may want abortions more difficult to obtain (as they imagine current circumstances) but they don’t want almost all abortions criminalized. If Republican presidential candidates announce their support for criminalizing abortions in the primaries in order to win the votes of the pro-life faithful, their Democratic opponents will be more than happy to remind the public of that position when the general election comes round. That, I predict, will help split the Republican coalition that has governed the country for years. . . By making it important for Republican politicians to take a stand — not on the relatively popular issues of partial birth abortion bans and parental notification requirements, but on the far less popular question of criminalizing abortion — South Dakota has managed to do what years of Democratic politics could not — create a wedge issue that will destroy the Republican party’s winning coalition nationally. 

    It seems to me that most Republican presidential candidates have consistently declared opposition to abortion. It also seems that it would be fairly easy for presidential candidates to dodge this particular issue – passing state legislation is, they would say, a matter for the states, and whether that legislation will stand is a matter for the courts to decide. And as Eugene Volokh has noted, the predicted trajectory for this legislation will be: invalidated by the District Court, affirmance by the Circuit Court, and certiorari denied by the U.S. Supreme Court. Not with a bang, but with a whimper.

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