Is constitutional life returning to America?

South Dakota’s passage of a law banning all abortions is great news. Whatever you may think about the particulars of this law—and in criminalizing abortion even in the cases of rape and incest, it is certainly extreme—the important thing is that the law has been passed in direct defiance of the miscreant U.S. Supreme Court. For 33 years, our country has suffered under the wholly illegitimate reign of the Roe v. Wade decision, which, in an act of pure judicial law-making, as though the Supreme Court were an elected legislature, constructed a federal abortion law out of thin air and declared unconstitutional all state laws against abortion. An entire generation of conservative activists have wasted their energies trying to pass an anti-abortion amendment to the U.S. Constitution (a terrible idea because it would permanently federalize the very matter that should be returned to the state level where it belongs), or to elect presidents who would nominate judges who would overturn Roe. And all that storm and stress has accomplished nothing, except for the not inconsiderable good of keeping the moral and constitutional monstrosity that is Roe before the eyes of the nation. The essence of Roe is its illegitimate assertion of federal power over state legislatures. Who, then, is better suited to resist that usurpation than the states themselves? This is the way our federal system was meant to operate. When one branch of our government overreaches, as the Supreme Court outrageously did with Roe, the other branches need to push back. So let’s have it out.

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After I posted the above, a reader suggested a less encouraging reason for the passage of this law:

The fact that it was passed a mere couple of months after Justices Roberts and Alito were confirmed has me troubled. My concern is that the South Dakota lawmakers have believed that this law they passed was the right thing to do for some time now, but didn’t think it would stand up to the Supreme Court (with Justices O’Connor and Rehnquist). Thus (though this is just conjecture on my part) they waited until the replacements, whose views on this subject are not so well known, and thus, could be more forgiving toward their cause, were confirmed.

This reeks of opportunism. If it was the correct thing to do in the past, then they should have done it and been willing to fight the Supreme Court, Justice O’Connor and all. The fact that they seem to have waited makes me think they aren’t willing to fight for it, but are just rolling the dice with the new Justices.

Bill Carpenter writes:

My fellow reader’s objection to the South Dakota legislation is puzzling. It is not opportunism to seize an opportunity to advance a good cause. Good morality does not require futility. States have been passing abortion legislation for years in trying to nibble at the margins of Roe. Now that anti-Roe forces have two more votes on the Supreme Court, South Dakota is going for the whole cigar. I applaud the legislators and the governor. I can’t fathom a view that says, Well they should have done it 10 years ago. Rejoice! Let’s see where this goes!

Posted by Lawrence Auster at March 08, 2006 05:38 PM | Send