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Why South Dakota won't lead to Roe review

If South Dakota's governor signs the bill passed by the legislature this week, outlawing abortion except when needed to save the life of the mother, it will generate a fight in federal court, which is just what the sponsors intend. They hope their vote will prod the U.S. Supreme Court into revisiting, and ultimately overruling, its 1973 Roe v Wade decision. 

But it's unlikely that such a scenario will play out, and here's why. There's no doubt the governor's signature will spark a legal battle. Planned Parenthood has already announced that it will go to court immediately. Both a federal judge in South Dakota and the federal appeals court will almost certainly declare the state law invalid, because both are bound by the Supreme Court's abortion decisions.


The state would then ask the Supreme Court to hear the case. But the justices are unlikely to do so for several reasons. The court's more liberal members who support the Roe v Wade decision -- Justices Stevens, Souter, Ginsburg and Breyer -- might think it would be good to take the case and strike down the South Dakota law to discourage other states from trying a similar gambit. But can those four be confident that Justice Anthony Kennedy, who has supported Roe in the past, will provide the crucial fifth vote this time? He joined the dissenters six years ago when the court struck down Nebraska's "partial birth" abortion law. Will he be with the Roe supporters this time? 

Conversely, it might seem plausible that the court's known anti-Roe justices, Scalia and Thomas, would want to take the case to strike Roe down. But can they expect Kennedy to vote with them? And are they certain that John Roberts and Samuel Alito are prepared to overturn Roe, after both said during their confirmation hearings that Roe was a precedent worthy of respect? And there's another factor: a decision against South Dakota could forestall further challenges to Roe for several years.

In short, neither side can be confident it would have the necessary five votes to prevail.

A Supreme Court expert, appellate lawyer Tom Goldstein of Washington, D.C., offers another reason the court is unlikely to take the case. While the justices make legal decisions, they are fully aware of the political impact of their actions. Even assuming Roberts and Alito are prepared, someday, to overturn Roe, they might well think it would be perceived as blatantly political to reach out, so soon after arriving at the court, to the first frontal assault on Roe that comes their way. They might worry that such an action would be perceived, Goldstein says, as a payback to the Bush administration.