Stoopid Stuff

South Dakota--Why it really Doesn't Matter

So the South Dakota Legislature has passed, and their Neanderthal Governer has signed into law, an act criminalizing abortion, in direct contravention of American Constitutional Law, as determined by Roe v Wade and upheld on a number of occasions. Now of course, the obvious obscenity here is this law was passed by a body comprised overwhelmingly of white men. Men who, I'm afraid, could not detect irony with, well, an irony detector. These educated, informed 21st century elected legislators have determined that they have the right to make the most intimate and private decisions for all women in their jurisdiction. Not the woman and her doctor. Not the woman and her clergy. Not the woman and her husband, parents, boyfriend or counselor. Oh no. If you can't work up a good sense of outrage over this mind-bogglingly orwelian intrusion on private medical decisions, then I suspect you could still support slavery. Actually, this is fairly close to slavery, as these men seem to believe that they own a woman's uterus, and only they may make decisions about how she uses it.

As you might have guessed, the pro-choice organizations are up in arms, working a multi-prong strategy to defeat this barbarous legislation both at the ballot box and in the courts. And just as predictably, the theocratic right wing has come out loud and hard in support. So what I have to say about this may surprise you. But when you think it through, you might just agree with me.

So where do I come down on this South Dakota legal travesty? Well, it's pretty obvious that I fully support a womans right to make her own medical, health and reproductive decisions. And I am wholeheartedly opposed to government intervention in the personal lives of Americans. But in this case, I think the alarm is misplaced. Relax. In so many ways, South Dakota just doesn't matter. Let me give you a few reasons why this action by a few lunatic-fringe theocrats is of no consequence, and indeed, may have a major negative impact on the anti-choice forces in the US.


1.) The whole reason for passing this law was to get a challenge to Roe v Wade in front of the newly constitued Roberts-led Supreme Court. The Extreme Right's excitement and joy at the confirmation of Roberts and Alito was palpable, if not a little unseemly. And indeed, this court poses significant risks for individual rights, separation of powers and Establishment Clause cases. But remember this: The Renquist Court was 6-3 in favor of Roe. Renquist was replaced by Roberts, so nothing really changed. So with Alito replacing the estimable Sandra Day O'Connor, you still have a 5-4 court. Roberts, Thomas, Alito and Scalia will certainly look at this case as an opportunity to overturn Roe v Wade. But they'll still have Ginsburg, Breyer, Stevens, Souter and Kennedy on the other side. And Anthony Kennedy is the new swing vote. Even if he would be willing to roll back some of the provisions of Roe (the so-called "Alito Strategy", it is inconceivable that he would vote to throw out the entire decision. This incontravertable fact leads us to reason number 2.

2.) Roberts won't take the case. That's right, he'll send it right back to the Appeals court who will have already found it to be unconstitutional. Don't believe me? Your sitting out there saying "waitaminute, Roberts is as far to the extremist right as Alito or Thomas--why wouldn't he want to take the case?" Let me give you two reasons. First, as we were told over and over ad nauseum during his confirmation hearings, Roberts is a brillian lawyer. This being the case, he knows if he took the case and the court upheld Roe 5-4, that would probably be the nail in the coffin for overturning Roe. That would be 3 major decisions upholding the constitutionality of abortion on demand, and that would likely be the cement for legal precedent forever. Second, and even more importantly, you have to look at this as the legal hand-to-hand combat it is. Roberts has a lifetime appointment as chief justice. There is no power on earth that can realistically affect him in his job for the next 30+ years. So after all the talk about Stare Decisis, Roberts is going feel used, like a pawn in the game, and it's a game he doesn't have to play. He will not allow himself to be used as a tool by the religious right, especially in a case they're likely to lose anyway. He will look the part of moderate, thoughtful chief justice, send the case back down and wait for an opportunity to begin chipping away at the structure of Roe, a course advocated by Samual Alito nearly 30 years ago.

3.) But here's the important part. The Conservative Right loves abortion. It gives them this great big boogyman under the bed. This giant, divisive issue that speaks to morality, religion, health care and (*ahem*) male dominance. They use it to raise funds, fire up the base, get out the vote and even to recruit campaign workers. Ask anybody working in the republican political machine and off the record they'll tell you this is a fight they don't WANT to win. Not only would they lose their best issue, they would end up with a whole bunch of unhappy republican women who would like to make their own reproductive decisions. There are already mutterings out of the RNC rank and file that the lunatics in South Dakota have over-reached. Now, they're not really worried, mostly for the reasons above, but if this agenda really began to gather serious steam, they would flex their considerable muscle to slow it down.

So while this administration and their counterparts in the other branches of government are working hard to strip your constitutional rights (remember the 4th amendment?), bankrupt the country in the name of ideology and short term corporate profits and reduce oversight and transparency to the point where they are effectively a totalitarian regime, this issue is not really a front burner problem. And I'm most certainly NOT advocating that the pro-choice community do nothing. We must stand up to every provocation, for the theocratic right is like a bully on the playground--if we show weakness they'll just take more. I'm just saying that this case will work out in our favor--Lets see what we can do about warrantless wiretaps and Iraq.

posted by mikey @ 1:54 PM