Monday, March 20, 2006

How do you solve a problem like South Dakota?

Via bitchphd, I came across this post of the DCeiver's, arguing that the smart course for Planned Parenthood would be *not* to challenge the South Dakota abortion ban in the courts. Since I both disagree and think that the points where I disagree are worth explicating, I'm doing so here since otherwise I will clog up her blog comments.

DCeiver writes:
Taking this matter to court is a fine way to make a big showy pageant of deeply held principles, but it's a trap--the path inevitably leads to showdown in the SCOTUS against a panel of judges that are, in all likelihood, not predisposed to rule in favor of abortion rights. It's the one battlefield where victory is certain to be denied and it should be avoided at all costs.

First of all, to be clear: this case won't lose at the Supreme Court if it gets there right. now. It will lose if it gets there once Kennedy, Stevens, Ginsburg, Breyer or Souter dies or retires (most likely, let's face it, Stevens). As of now, we have five sitting justices who joined in Casey in upholding the basic substance of Roe--and while some of them (or rather, really just Kennedy) are likely to accept additional restrictions on abortion, they won't accept this drastic a law, because it directly contradicts their exact precedents right on its face. This law is a stupid, stupid way to challenge Roe, because there is no grey area within which a justice like Kennedy can find a way to say that he isn't contradicting himself. In fact, if it gets to the Supreme Court, it may do its backers more harm than good by resulting in a reaffirmation of Roe that the Supreme Court is unlikely to embrace right now. My best prediction is that this case will result in an injunction on the law's operation at the district court level, which will be upheld by the circuit courts, and that the Supreme Court will not take certiorari and will never hear the case. There is no ambiguity in the law, and thus no reason to hear it--and by not hearing it they can avoid this issue, which even those who want Roe overturned eventually will wish to do if it's presented in this form.

So that's the first thing. But secondly, it isn't up to Planned Parenthood whether someone is going to challenge the South Dakota Law. Someone assuredly is; any woman who wants an abortion in South Dakota and can't get one has the option of filing a suit, and will probably find a lawyer to do so for her without much trouble, whether or not Planned Parenthood agrees with what she's doing. Any South Dakota specific women's group can file a suit, too, and has an incentive to do so since any suit is sure to result in an injunction on the law's enforcement while the case is being litigated (which will take years). Not to mention, other states are enacting similar laws also; Planned Parenthood can't restrain womens and organizations in all of those states from filing suit even if it wants to.

Next, whatever the ultimate outcome, a lawsuit can keep women's rights at least in their current (not great) state in South Dakota until the suit is resolved, as I mentioned above. And that's worth something. The main point that I think DCeiver misses is that we aren't fighting, now, for women's rights in Massachusetts--and we won't be after Roe is overturned, which I do believe will happen sooner or later (I just don't believe this case will be the one). We'll be fighting for women's rights in the states that want to take them away--South Dakota, Mississippi, and Missouri, for a few--just like now. And we'll be fighting for the rights of poor women, just like now. After Roe is gone women who can afford to will still travel to the blue states for abortions; the blue states will still allow abortion, and women like men who live in them will still have access to abortion; poor women in South Dakota will still be screwed. They are who we will have to fight for after Roe, and they are who we should be fighting for now. Even were it possible for one organization to decide for all women not to bring suit in this case, there is no point to refusing to litigate against this law for fear that the Supreme Court will ultimately use it to overturn Roe. And were we to so refuse, we'd be trying to secure our own illusory safety on the backs of poor women in the red states. A refusal to fight this one just leads to a post-Roe world a little sooner--the states that would pass anti-abortion laws after Roe's demise will pass them now, unchallenged. If South Dakota is successful--in the courts or because we don't go to court--other states will follow. They're following now. Honestly, I'd rather go down fighting.


Blogger skylanda said...

Great post, Thistle. I have also felt optimistic about this, probably because, like you said, this law is so draconian that it's unlikely to stand as it is. A smarter move on the pro-life part would have been to restrict it in a less stringent way, so that it could slip through on the basis of the exceptions it makes. The pro-life side rarely makes tactical errors this big, and I agree that it's time to push it through the courts before the SCOTUS starts leaning even further to the right.

At the same time, no one knows what the next presidential election will bring, and if the older justices on the SCOTUS can hang on until after the next election in 2008, the picture may change drastically, since Bush has no heir apparent to run for office and the GOP's ratings have been on a long downhill sinking since the last election. I wouldn't bank on that though - I'd bank on the current SCOTUS being the best bet we've got against this particular law.

12:13 AM  
Blogger thistle said...

I'm actually optimistic about the next elections too, though my optimism re: elections is really not something to bank on (for example, you should have *seen* how damn optimistic I was last time). If we don't win the election, though, we probably only have a couple of years--maybe not even until the neext election, actually--before Stevens dies or has to retire. He's in what, his mid-80s? That's a long time to stay in office.

6:25 AM  
Blogger skylanda said...

Thistle, do you know what's actually going on right now with regards to PP planning (or not) a lawsuit against the state? It seems to have dropped out of the news (go figure - women denied their human rights is only news for a few days), but I'd like to follow what's going on with that.

12:05 AM  
Anonymous Anonymous said...

Thought you might enjoy this -

and this is Lightly - had to sign as anonymous the way the site is setup

9:09 AM  

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