The End of the Road for Abortion?
Do states have the right, in certain circumstances, to ignore federal Supreme Court decisions? It’s happened in the past, and it could become an issue for South Dakota in the near future.
South Dakota has passed anti-abortion legislation which makes it a felony punishable by imprisonment to abort an unborn child except in cases where the mother’s life is in imminent danger, thus disregarding the Supreme Court decision of Roe V. Wade for the first time since the precedent. A number of other states are currently working on similar legislation as well. Apparently, South Dakota legislature feels confident that the Supreme Court, with two new members of the bench, will now have the votes to uphold the States decision to outlaw abortion. Basically, South Dakota is counting on pro-abortion groups like Planned Parenthood to bind up the pending law in the court system with appeals, thus forcing the Supreme Court to take another look at the issue and to make another decision regarding it. South Dakota thinks the Supreme Court will side with the State this time, thus overturning Roe V. Wade.
But what if they’re wrong? What if the legislation is examined in the Supreme Court, and what if the Supreme Court calls their law unconstitutional? What if Roe V. Wade is once again upheld? Then what? Will South Dakota back down? Must they?
Well, I have no idea what they would do, but I do know what they have a right to do. They have every right in that situation to ignore the ruling of the Supreme Court and continue to enforce the anti-abortion legislation in their own state. South Dakota has every right to deem abortion unconstitutional and in doing so must ignore federal government intervention. The federal government does not have sovereign jurisdiction over the states in legislative matters unless the laws can be proven unconstitutional.
What most people don’t realize is that the “right” to abortion is not law. It never has been. There isn’t legislation protecting a woman’s “right” to get an abortion or a doctor’s “right” to perform one. There’s judicial precedent, but that’s it. Judicial decisions carry a lot of weight, but they’re not law. They can be ignored and overruled when they are bad precedent. Roe V. Wade did not, contrary to popular opinion, make abortion legal. It gave Roe the right to an abortion, but not every other woman since. Roe V. Wade is case law. It applies to Roe. Legislation, on the other hand, applies to everyone.
The quickest way to illegitimize abortion is for states to pass regulation outlawing it and for state attorney generals to enforce it. But the states, until now, have been afraid. States need not bow the knee to the almighty federal judiciary if the courts oppose the interests of the people of the states. States still do have rights independent of federal orders.
I don’t know if it’ll go that far. I don’t know whether or not South Dakota will stand their ground or cave in to the pressure. But imagine for a moment that they do stand their ground and ignore a Supreme Court decision which deems their law unconstitutional. What next? Who’s going to stop them from enforcing it if not for the federal government? Who has the power then? The answer is the executive. The president has the power and responsibility to execute the laws. Will he side with the Supreme Court? Or will he maintain states rights? Maybe it’s hypothetical, but if that ever happens, we will then know for sure where our president’s allegiances truly lie.
(Washinton Post printed an article on Thurs Feb 23 2006 pg AO1, or washingtonpost.com)