No Guarantee High Court Will Revisit Roe

Tuesday, March 07, 2006

A high number of conservatives are hoping (and assuming) that the new South Dakota abortion ban will force the Supreme Court to revisit the Roe decision sometime next term.

Captain Ed wrongly asserts, "Without a doubt, the Supreme Court will not be able to avoid the reconsideration of Roe." South Dakota's blatant defiance of the Supreme Court's recognition of the right to abortion does not necessarily have to reach the Supreme Court anytime soon.

The Court has already agreed to hear the challenge to partial-birth abortion next term and may not wish to consider the broad constitutionality of abortion again. South Dakota's law will likely be struck down by a district court (as it should, because it must follow Supreme Court precedent) and a subsequent circuit court of appeals. At that point the Supreme Court could simply refuse to hear it for themselves and allow the lower court's ruling to remain valid.

Four justices of the Supreme Court must decide to hear a case before a writ of certiorari is granted. When South Dakota's law is inevitably killed at the appeals level it is highly unlikely that any of the five justices who currently support Roe will wish to bring the ban back. The four remaining justices could remain to hear it but a wiser strategy would be for them to wait for one of the liberals to be replaced by another Bush appointment.