Redstate

The bill will be overturned, but it's nice to see that it passed so solidly.  I was glad to see that it equally protects unborn children that are deformed or the result or rape or incest -- that these were not "excepted" as being okay to be aborted.

Maybe it's time for an Old Hickory moment.

He was wrong on many things, but boy, has he been proven right about the Supreme Court.

The bill passed the House 47-22, largely along party lines, but the Senate is not as bipartisan on the issue.

So, the SD House passed the bill along party lines, but the Senate was less bipartisan. The Republicans mentioned by name in the article were evenly split for/against the bill, and the lone Democrat mentioned by name supports it. And the two Republicans shown in the accompanying photo both opposed it. Sounds like the Senate was the bipartisan branch.

I'd like to see the breakdown of the vote, if it is available somewhere online.

I really didn't like seeing a Republican quoted thusly:

To require a woman who has been savaged to carry the brutal attack result is a continued savagery unworthy of South Dakota.

to which I would reply, "It is a baby, not a brutal attack result, Senator, and it is at least as innocent in the crime as the mother."

I found names, but not party affiliation.  The main sponsor in the Senate was the Democratic woman quoted in the article.  I found a blog (no comment on credibility) that said the partisan split in the Senate was 25-10.  So the 23-12 split could be close to party lines but when the main sponsor is a Democrat it seems about as bipartisan as one can expect.

Would emergency contraception be avaiable for rape victimns?

Finally a legislature has had the guts to defend an abortion policy that is actually ethically consistent.  South Dakota will certainly take a lot of heat for this one from liberal circles, and maybe even some conservative ones.

An interesting thought I had while reading this was mentioned above by one of the commenters.  South Dakota passed this bill with the full knowledge that the district court that hears the inevitable lawsuit will strike down this act, and so will the circuit court that hears the appeal and so too will the Supreme Court if it decides to grant certiorari.  South Dakota could be doing this because it hopes the Roberts court will use it to overturn Roe v. Wade, but I'm sure the legislators know the numbers are against them.

So then, is South Dakota doing this specifically to cause an "Old Hickory" moment and defy the federal courts?  Under old constitutional principles it would certainly be within the governor of South Dakota's rights to refuse to enforce a court decision, but with the rampant ignorance of basic constitutional law in our media, no doubt it would be spun as some kind of constitutional crisis.  In reality, the courts created the potential for this "crisis" the moment they began overstepping their boundaries, especially in areas of social policy.  If South Dakota takes a stand I will be the first to applaud them.  Someone needs to set a precedent.

We need to seriously look at the candidates asking for our votes.  I want to hear them say what the Senators in South Dakota are saying.  That the time is now.   We have the House, we have the Senate, we have the Court.  It is time.

We should be pushing all of our folks on the Hill to push forward the proposed Constitutional Amendment that was part of the 2004 National Republican Party Platform.  

30 years is long enough, it is time to act.  Ban this horrific practice and drive the final stake through the heart of the democrats.

I think this law will run into some trouble in court down the road as it also ignores, rape and incest circumstances.

Other than very hard core pro life folks, I think the the general public would support exceptions under those conditions also.

Maybe a bit to far, a bit to fast in my view.

History has not been kind to people who've taken the "let's see the court enforce the law" line.  And it's not exactly good PR to endorse an "Old Hickory" line, when that refers to the maneuvering that lead to the Trail of Tears.

History has been extremely kind to folks who told the Supreme Court to take a running hike, whether those folks were Andy Jackson or the United States Congress.

That was back when they took "coequal branch" as more than a euphemism for "our Robed Masters."

It just took 5 years for them to take effect.

I figure if the Democrats can have Jefferson-Jackson dinners, then I can cherry-pick what I like of his legacy, too.

Well, I suppose it's possible that we just have different ideas about who history treats kindly.  But I'm pretty sure that Andy Jackson ain't one of them.  The only unarguably positive thing he is remembered for is being general at the Battle of New Orleans, and that was (of course) prior to his Presidency.  The only thing that I remember about his presidency are the introduction of the spoil system and the Indian removal, and like I said, I don't think Indian removal is something for which he's fondly remembered.  Sounds like he wasn't fondly remembered (and I used wikipedia to help out my memory here, I confess), but like I said, you may have a different idea of who gets remembered and for what.

So, if we disagree about Andy himself, what other good Old Hickory moments did you have in mind?  I mean, we can all name bad SC decisions, but I can't think of any President who "bravely" took a stand against them to block their enforcement.  Any ideas?

Someone mentioned that elections have consequences and a law that is seen as draconian (for not containing an exception for the health of the mother, rape, or incest) could backfire in 2006 and 2008.

It's certainly fair enough to endorse specific parts of a President's legacy but not others.  But let me just get really clear here -- are you endorsing the part of Jackson's legacy that involves [purportedly] ignoring the SC ruling that would have prevented the Cherokee from being kicked off their lands?

[Aside: I say purportedly because the wikipedia gloss on the incident is different from the one I learned in history class.  According to them, Jackson never even said anything like 'Let's see them enforce it', and never had any authority over the matter to begin with]

I'm endorsing the concept of equal branches in principle, against the idea of an unaccountable Supreme Court being superior to accountable elected officials.

At least as I was taught, in the South and West, Jackson was a complicated fellow who bounced back from a "stolen" election to take the Presidency, consolidate the Democratic Party's electoral strength, did the thing with the spoils, and continued American expansion. The Indian tribe issue is dealt with rather evenhandedly.

I'm thinking of someone named McCardle, and a group of flexible men in black robes.

That shows just how perverse our judicial branch is these days, that some poll results will influence how judges interpret the Constitution.

I apologize for my ignorance on this matter.  I looked up the McCardle case, since I never heard of it, and a search turned up some case involving someone who was arrested for publishing editorials critical of Reconstruction.  He appealed his case up to the Supreme Court, but the legislature removed their jurisdiction of the case prior to their decision.  Is this the case you have in mind?  How does it help your argument?  Or is there another McCardle?

And your 'flexible men in black robes' bit is lost on me.  I'm really sorry, I feel kinda dumb.  The only think I can think of that fits that bill is ninjas, but I doubt you're talking about ninjas.  Which, really, is kinda too bad...

I do look forward to your reply, though.

I think all parties to the dispute agree that the 3 brances should be coequal &c.  The problem is that a line like yours runs very close to "let's ignore one branch of government when they say something we don't like", and you have to admit that this sounds pretty dangerous.  Maybe there's some principled reason you can give for ignoring certain decisions, but it seems like a very dangerous road to go down, and certainly not a road conducive to the notion of coequal brances.

I think it's more dangerous if we have a Supreme Court that works more like the Iranian Council of Guardians, than a court that merely interprets laws.

Let's say that the SC has over-stepped its bounds.  Maybe it's been over-stepping its bounds since Marbury v Madison.  So, for argument's sake, let's grant all this.  What, then, is the proper course of action to take?  

If we selectively enforce the rulings of the body, then you neuter the branch.  I take your point about the Iranian council to be that we should neuter them, since they're not (directly) accountable to the people.  Thing is though, you imply further down in this thread that justices should not use polls to influence their decisions.  And I agree with you there.  But of course, this cuts against the point that the judicial branch is on worse footing for being less 'democratic'.  After all, they're supposed to be the branch that doesn't worry about polls!  They're the ones that save us from tyranny of the majority.  And if you neuter them, then it seems that that's exactly what we're left with.

Some view all abortions as draconian, I understand this view and have respect for those that sincerely hold the view. At the same time, the rest of the country, myself included is not on the same page.

There is a real risk of over reach in moving too far too fast and a resulting backlash at the ballot box.

I can't imagine anyone forcing a woman to have a baby in the rape/incest cases. And I know that would never be the law of the land.

So I'd support a ban with all 3 exceptions (life/rape/incest). But even that is politically untenable nationally and will not happen anytime soon unless Roe is overturned and some states pass that.

They are a moral torch through the darkness.

I doubt that a bill passed in SD or other conservative states, that will definitely be overturned, will have any backlash effect.

While I do not view abortion as draconian, I still somewhat admire SD action.

The reason why Rove let the 527s battle it out over abortion in the 2004 election and why Alito was so well briefed to avoid any opinion on abortion during  his confirmation hearings is so that they can avoid sparking a national debate on abortion rights in outside of the bases-America. The fact is that most people support the right to have an abortion [Source], including GOP strongholds like Texas, Wyoming, Nebraska and Kansas. If these places have more people supporting than opposing, then you can expect most of the country to follow this tune.

Judges are not suppose to follow public opinion, they are suppose to follow the law - yes. Roe v. Wade has been 35 years of precedent and overturning it - which would amount to the most historic reversal of one of the court's decisions - could spell disaster for the political party that was supportive of the idea (read: GOP).

Elections do matter; and anti-abortion candidates will stop winning them if the court overturns Roe, might even have an effect on the midterms if a nationwide media narrative sparks that Roe is under seige.

This law would be great if South Dakota took the responsible step and added the rape and incest provisions and broadened the health exception. Without those things, the Supreme Court will strike down the law, strike fear into the heart of every DNC voter, and drive them all to the polls this November or in 2008 and there will be much more major consequences. The next President will, most likely, be able to nominate another two judges, coming from right-center ideologies. That would be five solid votes against any changes to Roe for 25 years+.

There is a reason why mainstream conservative judicial philosophy is that Roe is an outer shell and all in between can be marginalized so that the outer shell can be rendered irrelevant. This was a very irresponsible step toward getting what we want done.

I must say, I have a problem with a Democrat coming here, and calling people 'irresponsible' because they oppose the slaughter of a child solely because his father was a rapist.

with the cause, but this is tactical blunder of some proportion, rather like the premature attack the Union made at Bull Run which resulted in a stinging defeat and a much longer war. This law will be struck down in its entirety and that will simply reinforce the precedent behind Roe vs Wade, making the pro-life cause even harder to advance, and possibly energizing the pro-abortion crowd just in time for this year's elections (or 2008's). A better strategy at this point woudl be increasingly restrictiev laws that do not challenge Roe vs Wade directly but allow the Court to whittle away at it until eventually it's fairly moot.

This is a comment of mine from the Kos thread in response to a similar point w.r.t. SurveyUsa poll:

I've done quite a bit of research on the topic and that one robo-poll is a bit of an outlier, but not by a lot.  Gallup's polling goes back decades with the same questions and the results are pretty consistent.  "Pro-choice" is always 48%-55% and "Pro-life" is 41%-48%.  The more interesting part (and the first thing that got me interested in polling) is when they ask more specific questions such as:

"Do you think abortion should be legal in all, most, some, or no situations?"

Where "some" and "most" get 50+%.

Similarly, the questions on situations are more diverse.  Abortion in cases of rape, incest, and health of the mother garner 70+% support.  But abortion for reasons of financial situation, personal preference, or other non-medical reasons usually get about 20-30% support.  Partial birth gets about 20% support.  Most of these numbers have barely shifted from 1980 through the present (although "pro-life" has ticked up a few point over that time frame).

So rely on that poll as much as you'd like.  But I'd point out that 2/3rds of the public "do not want Roe overturned" while only 30% support the legality of abortions outside of rape, incest, and life of the mother exceptions.  In other words, most people don't know the details of Roe and what overturning it means.  Most think it will outlaw ALL abortions, which as you know isn't true.

And honestly, I don't even think most people here think that poll reflects the country's view on abortion.  Why did the Ds nominate a pro-life in PA which according to that poll is 44% pro-life and 51% pro-choice?  Why did Kaine in VA hide his pro-choice views in 39% pro-life VA?  And why do Rs keep running all these pro-lifers in 39% pro-life Wyoming, Arizona, and 34% pro-life Colorado.  I don't think political reality matches well with those numbers.  Just my 2 cents.

As for overturning bad rulings, I'd say the Brown v. Board of Education overturning of Plessy v. Ferguson was "the most historic reversal" of a case in history.  And it is upheld as probably the most important case in legal history as well.  Just food for thought.

this will be overturned?

Just because I am a Democrat does not mean I am any less anti-abortion than you or any other Republican. That is the attitude that turns people off from hearing your argument at all.

The commenter just below this made my point in much more compact way. There is a responsible way of going about systemically curbing Roe. Trying to go for the whole bag won't lead to anything productive.

Look, it's very simple:  Either we believe that the Constitution is an inherently pro-abortion document, or we believe that the states retain the authority to ban the practice.

Forget tactics; this is a matter of right or wrong, black or white, living or enduring Consitution.  Do we believe that 9 people in black robes determine the meaning of the Constitution, that the States hold no power in our federal system, and that the rule of law means nothing?

If the Supreme Court steps outside the law, exceeds its authority in an imperial manner, and strikes down this justly-passed law, then it can only be right to oppose them.

To paraphrase a great, pricipled man: We will be heard.

Just because I am a Democrat does not mean I am any less anti-abortion than you or any other Republican.

Statistically, yes it does. There's a reason I always forget that Rachel is a Democrat. Nonetheless, I'm always delighted to find a pro-life Democrat. Welcome.

It's great to grandstand and throw the gauntlet down, but most of us live in reality.

This is the best possible scenario that follows the Supreme Court doing what you and I, presumably, want it to do (overturn Roe). Liberal Democrats pick up seats in every swing district in the country and push most solid seats to the edge, probably resulting in a 40-50 seat gain in the House. GOP will lose RI, both seats in ME, Florida, probably lose Kyl in AZ, goodbye to Grassley in Iowa, Coleman, Ensign, Smith - at least. That's nine seats.

Followed by that is a decent national movement to get Congress to approve a broad abortion legalization, probably going back to what is the status quo right now - everything but partial birth abortions.

So, after all of this, abortion is still legal, and the movement against it is destroyed.

That is great logic.

What are you babbling about?

If a large legal majority of the South Carolina legislature cannot pass a law and have it hold up, then elections are meaningless, and our Republic is on the verge of destruction.

If the Supreme Court can abrogate at will any law passed by the Congress, then it doesn't matter if the Republicans hold 100-0 and 435-0 seat majorities, plus the non-voting delegates in the House.

Is the signature. Forget it.

By the way, I bet that you wouldn't have this opinion if, say, the Massachusettes legislature passed a law allowing all abortions legal under any circumstance and the Supreme Court struck it down.

Anyways, to take a phrase from Orrin Hatch, anyone with brains can see the backlash that will result in the Court upholding this law. What I said is probably around what would happen and there would be no more anti-abortion movement for a long time.

The question is: Would you rather see the Court uphold it, only for liberal Democrats to get it legalized in the Congress or would you rather get the Court to uphold the PBA Act, uphold no federal funding, uphold taxes on clinics, uphold etc. which don't carry that weight and go further to promote our agenda?

You can't argue with me, so you accuse me of being unprincipled.

Then you go on and imply I have no brains.

Yeah, I don't think I really need to read any further beyond that.

I never implied you don't have principles. Please point to any part of my statement where I accuse you of otherwise. I never said that you don't have brains. Please point to any part of my statement where I say that you don't have brains.

All I am saying is that there is a political reality to this and we will begin to lose battles on every front if this kind of thing flies around. I am as anti-abortion as you. I'm a member of my campus's Students for Life. I'm in the crowd every year in D.C. too. But at least I know that overturning Roe won't solve anything and it certainly will cause more problems for what I believe in.

The actual constitution as it was written is supposed to be the arbiter here, not whatever the judiciary can invent in the name of the constitution. If the judiciary is out of control, at some point the other branches have to say "just try to enforce it."

It is not something that should ever be taken lightly, but it is sometimes the only correct action to take. For example, in the case of the Mass Supreme Court decision that ordered the legislature to write and pass a gay marriage law and the executive to sign it. Of course they did not do the right thing there.

In the wording of the article. It does not make a lot of sense as written. It's possible they meant to say across instead of along.

CA and NY will probably have legal drive-thru abortions up till the due date. SD will not be forced to add exceptions for rape/incest/etc. It doesn't matter what the political opinion on this is nationally. It only matters what the opinion on this is in South Dakota... and I would say you just got your answer on what that is.

Bravely or otherwise, Lincoln in the Merryman case, and by force of arms.  Taney's marshall was prohibited from serving a writ of habeas corpus by armed soldiers.  And Roosevelt's threat of court packing didn't smack of high respect although it does appear to have achieved results.  As between an online "encyclopedia" and school and what Jackson said go with school. Re --"let him enforce it"; "jackson did not make that statement[ although he did nothing to stop Georgia from defying the Court's decision] and he never asserted an inherent perogative to disregard judicial decisions.  He merely wanted equality  among the branches of government in matters of constitutional interpretation". Oxford Companion to the Supreme Court.  The "spoils system" thing weren't his words either, a small proportion of employees's were affected and considering that many had worked thru four differnt presidencies,all of them two terms, and in the absence of civil service and a burgeoning democratic movement to boot I don't see Jackson's actions as being reprehensible.  Jackson could be and often was a ruthless man  but for whatever it's worth Martin Van Buren was president during the Cherokee exodus. Apart from Indian issues I fail to see how Jackson's views, held by many at that time and not extinct yet, of a truly co-equal federal government should be either alarming or unsettling.  Coating them with the Trail of tears does not make them so as it still remains  a profound and thorny constitutional issue.

The number of single issue pro-abortion voters out there. There is no way abortion will ever have any restrictions at all in at least a dozen states. It will only be effectively banned in maybe a dozen states. The rest will take some position in between. The ones where it will be banned are not the states where the masses of single issue pro-abortion voters live.

you are dealing in fantasy.  Both seats in ME?  The Dems can't even get cannon fodder to run.  Grassley?  He just won with 70.1%!  Fl?  50 seats in the House?  I want what your smoking.

Only if the King County(WA) Board of Elections certifies all the results nationwide does your prediction come true.

There is an outside chance of Roe getting overturned...even as a direct result of this law.

This law that was passed will probably take, say, a few months to come into effect. It will take that much longer for the NARAL and NOW ladies to load their shotguns. You'll probably have a Federal District Court hearing maybe in September- October 2006. Give that trial two months or so and we are already at the end of this year.  Appeals court hearings will be held Feb-March 2007 with SCOTUS maybe geting this case mid-summer 2007 at the very earliest. If you allow for certain other factors, SCOTUS might get this as Bush is leaving office.

Assuming the SCOTUS that hears this will be the same one we have today, keeping in mind the earliest they will get this case will be over a year away, we currently have Alito, Roberts, Scalia and Thomas as fairly anti-Roe justices. The pro-Roe justices are Souter, Ginsberg, Stevens and Brennan. The key to this equation is Kennedy. He did vote to uphold Roe in Casey, but he voted in the minority in Carhart. If the new judges on the court can be persuasive enough, they MIGHT be able to flip Kennedy.

Not good betting odds, but when you consider what we might gain out of this, it might be worth it.      

The 14th and ICC are not supposed to be the keys to taking any authority from the states the feds want. If we have a court that will overturn Roe, we will also have a court that will not allow the legislature to pass a law that takes control of abortion from the states without a constitutional amendment.

Replace Brennan with Breyer.

If the Federal courts strike down this law and Dakotans chose to, as you say, resist, their resistence will take the form of arresting violators of the law.  When they do so, the people arrested will use their Habeus Corpus rights in Federal Court to demand their freedom, which they will get.  For S.D. to truly "resist" the Judicial branch on this matter they are going to have to deny the accused in their state access to Federal courts which is a) unlikely and b) barbaric. This is merely a trial balloon to force judicial review.  And a poor one at that.  The lack of relief for the health of the mother is so onerous under O'Connor's reframing of the debate on Roe that I have a hard time imagining Roberts and Alito voting to let this law stand.  If they were serious, you would think they would have given the Justices some wiggle room.  But anything can happen, I suppose.

Tell you one thing, though:  As a Democrat, I'm happy this is out there for suburban women voters in Northern states to see before the midterms. It's great GOTV for our side.

Here was the voting record with party included:

A "yes" vote was to pass the bill. A "no" vote was to defeat it.

YES-23

Gene Abdallah, R-Sioux Falls; Jerry Apa, R-Lead; Julie Bartling, D-Burke; Eric Bogue, R-Faith; Mike Broderick, R-Canton; Jay Duenwald, R-Hoven; Bill Earley, R-Sioux Falls; Jason Gant, R-Sioux Falls; Bob Gray, R-Fort Pierre; Brock Greenfield, R-Clark; Tom Hansen, R-Huron; Dick Kelly, R-Sioux Falls; Frank Kloucek, D-Scotland; Gil Koetzle, D-Sioux Falls; John Koskan, R-Wood; Jim Lintz, R-Hermosa; Kenneth McNenny, R-Sturgis; Garry Moore, D-Yankton; Bill Napoli, R-Rapid City; Jim Peterson, D-Revillo; Lee Schoenbeck, R-Watertown; Orv Smidt, R-Brookings; Dan Sutton, D-Flandreau.

NO-12

Stan Adelstein, R-Rapid City; Tom Dempster, R-Sioux Falls; J.P. Duniphan, R-Rapid City; Gary Hanson, D-Sisseton; Jim Hundstad, D-Bath; Dave Knudson, R-Sioux Falls; Clarence Kooistra, R-Garretson; Mac McCracken, R-Rapid City; Ben Nesselhuf, D-Vermillion; Ed Olson, R-Mitchell; Duane Sutton, R-Aberdeen; Theresa Two Bulls, D-Pine Ridge.

...a state like S. Dakota trying to stop the murder of ubnborn babies makes for excellent grist for the Democratic political spin machine, eh?

Tell you one thing, though:  As a Democrat, I'm happy this is out there for suburban women voters in Northern states to see before the midterms. It's great GOTV for our side.

Well, at least you're honest about using the issue of protecting the right of a mother to resort to infanticide as a rallying point to keep your party in power in the north east. I wish more Dems were as honest about the blood on their hands as you are.

. . . one of the aforementioned "in-between" States that better represents the plurality of opinion (no on abortion except in cases of rape, incest, and to protect the life and health of the mother).

As Adam so correctly pointed out there is a disconnect between whether people (a) agree with Roe* and (b) what restrictions they believe should be placed on abortion and this disconnect is largely because people think reversing Roe means that abortion will automatically become outlawed instead of leaving it to the State legislatures to decide what restrictions if any should be placed on it.

Unfortunately by making the test case a State whose new law is closer to what people wrongly fear (abortion being outlawed by reversing Roe) rather than a State whose law would be closer to the consensus (rape, incest, and to protect the life and health of the mother), ND pro lifers may have just handed a nice propaganda tool to the opposition that allows them to continue scaring people with "if you allow Republicans to appoint Far Right judicial nominees then if your underage daughter is raped and impregnated, she cannot have an abortion even to protect her own health."

* And for the umpteenth time, Roe is no longer the controlling case, Casey is.

Judges are not suppose to follow public opinion, they are suppose to follow the law - yes. Roe v. Wade has been 35 years of precedent and overturning it - which would amount to the most historic reversal of one of the court's decisions - could spell disaster for the political party that was supportive of the idea

Whether by design, or by incomplete research, you have made a factually incorrect statement.  Brown versus Board of Education overturned 58 years of segregation.  I'm sorry to be a nit-pick, but I'm tired of hearing over-reaching phrases in an attempt to sell a point of view.  Things I hear on the morning shows.  "This is the most corrupt administration, EVER!  EVER EVER!

Secondly, and this is for above post as well, the Supreme Court is not the final arbiter.  Would anyone suggest the Supreme Court was correct in siding with Sandford against Dred Scott?  We look at it 150 years later much differently than it was looked at then. Often, doing what is right flies in the face of popular opinion.

Abortion is a racket in this country.  Don't, if you're pro-abortion, suggest to me that all you want is the Federal Government's hands off your body, then cry for the police power of the state to protect you from having to endure peaceful protestors.

Rik

Say the law is upheld. Most people are able to understand that the law in question is in South Dakota, not their home state. And that abortion in their home state is still entirely legal. It will be immediately obvious that it hasn't been outlawed across the country. If they are still not able to understand this, frankly, they are probably already voting for whomever their friends tell them to vote for or whomever looks the hottest in their windsurfing gear.

(Also: This is SD, not ND).

You can make abortion polls say whatever you want. I wrote a piece on that a few years ago.

Accusing one of having blood on one's hands is pretty close to a personal attack.  I know if I accused proponents of our current war of such a thing, the mods would have something to say about it, and rightfully so.

Are you really suggesting that killing an unborn child is equivalent to killing a Baathist or a terrorist?

That was a poor choice of subject.   It is possible for a radical pacifist position to be perfectly reasonable in making that equation.

I apologize if you're a radical pacifist and I just called you unreasonable,

the rules say no personal attacks.  It was a personal attack.

I'm all in favor of killing our enemies as well as other people outside the social contract.

You know, like Iraqi children and the unborn.

Jackson was considered one of the great presidents in the 1930's-1960's because he extended the franchise to just about all white men and was seen as a hero for democracy and working class guys.

His star has diminished with the onset of multiculturalism because of his treatment of the Indians.

I think history (or more specifically historians) have looked favorabley upon presidents who exapanded their powers and Jackson did this, as did Lincoln, FDR, Teddy Roosevelt, Woodrow Wilson.  Personally, I think this is a pretty questionable way of judging presidents.

Just take out abortion and insert gay marriage, and take out SD and insert MA, and recall that people went freaking bananas in such MA-like places as Mississippi.  

Unfortunately, to overturn Roe, we only have four votes max.  We need one and hopefully two more nominations before 2009.  Thank Ms. Dole for fielding some bad candidates and Mr. Burns for whyevertheheck he's down 5 points and the hole GOP senate for not passing SS reform and we may be looking at a senate with only 50 (R)s.  The only tactic Bush has to get a staunch originalist through is nominate a senator.  Hatch, Cornyn, and Martinez come to mind...my two cents.

Let's count votes.  As I understand it, Thomas, Scalia, Souter, Ginsburg, Breyer, and Stevens are known quantities who consistently come out on one side or the other on this issue.  Alito and Roberts are unknown, but probably on our side.  That makes two sure votes and two probables for us, and four sure votes against us.

That leaves Kennedy as the tiebreaker.  He's already proven himself a 'swing' vote on abortion, by voting with the majority in Planned Parenthood v. Casey but dissenting in Stenberg v. Carhart.

One of the reasons many of us liked Chief Justice Roberts, is that he has a track record of being able to sway justices on this court, including Kennedy.  It's possible that the 'new blood' on the Court could pave the way to another shift by Kennedy.

And yes, it's sad that we're talking about individual personalities changing the 'official' meaning of the Constitution, but until a state gets the chutzpah to take a stand against a ruling against it, as South Dakota might yet, that's what we're left with.

Was the way it was done. The outrageous order from an Imperial Court that the legislature draft a law that meets their approval. And that the executive sign this law. People get excercised about judicial imperialism, and rightly so. It is an attack on our very form of government. I would not have a problem if the MA legislature decided to legalize gay marriage of their own accord.

This doesn't apply to the issue at at hand.

He seems enamored with his status as the "new center." I'd love to agree with you that Roberts persuasive powers will lead him to decide this case differently from how he decided Casey, but just don't see it from the way he's drifting further and further leftward.  

I believe he was originaly going to vote with Scalia, Thomas, Rhenquist, and White on the Casey case but was swayed by somebody --either Brennan or O' Conner-- at the last minute.  So at least he's swayable!

Do you have a source on where Americans targetted Iraqi children?  I can give you quite a few sources about the purposeful ending of lives in abortion clinics.  I'd be wary of going down this line or moral equivalence.

I actually think it won't make it to the SC.  It will be struck down much further down the line and the appeals will not be granted.  Then again, I'm not sure which District and Appeals Court SD resides in.

Ds 7-3 (70% pro-life)

Rs 17-8 (68% pro-life)

Fascinating.

I predict a 4-1-4 plurality opinion when it gets to the court. On the other hand, Justices Stevens and Ginsburg aren't getting any younger, so that may change.

Kennedy may or may not uphold Roe. However, he will probably gut what is left of it. The "right to choose" will remain, but states will be able to make abortion as hard to get and as unprofitable to provide as they want.

While I support this law, it will do little to reduce the number of abortions. SD only has one clinic and it is only open part time. Casey has allowed states more latitude than people realize to restrict abortion. Even if, Roe is overturned, very few clinics will end up closing.

However, a 435-0 majority in the House and a 100-0 majority in the Senate would be a good start toward passing a constitutional amendment.

in MA has the ability to affect what marriages are recognized in other states, that is why DOMA was created and why the states rushed out to create marriage amendments.

Outlawing abortion in a single state isn't going to have any influence at all on abortion in other states (and neighboring states that have legal abortions might actually see a windfall, from those in SD who would travel to get abortions done elsewhere).

Doe essentially makes all abortion up until the day of delivery legal, provided the abortion doc says there is some threat to the mothers health.

Read Doe and what counts as a health exception, and you quickly realize everything goes.

I think the direction the court goes in first, before it addresses the specifics of Roe is it will clean up the confusion and broadness of the "health" exception definition, and make it so that it isn't so broad to the point that anything goes.

Kennedy I think, given his voting past will likely be in a majority with the "conservatives" on the court.

Your point about Lincoln & Merryman is well-taken: I hadn't thought of that case.  I'm not sure if it's a decisive case or not, since many people are still uncomfortable with many of the actions that Lincoln took, but if the ends can justify the means, they probably did in that case...

But -- and I know this is something of a tangent -- I don't see why you declared the victor in this case to be my school, when the Oxford Companion completely agrees with the wikipedia.  As I stated above, I learned that Jackson said made the statement, which he didn't, and that he ignored the Court's decision, which he didn't since he had no power to enforce or not enforce it.  It was merely an issue between GA and the Cherokee.  The fact that he merely wanted equality among the branches doesn't enter into the issue, insofar as what I learned in school.

Also, my original point wasn't that Jackson's views about the judiciary are obviously wrong.  It was rather more of a PR suggestion: if you want a model of reasonable, justified, and principled curtailment of the judiciary branch, you don't want your example to be the thing that leads to the trail of tears.  If you really think the ends can justify the means in this sort of thing (which is, of course, a whole other debate), you're better off appealing to Lincoln than Jackson.

And for what it's worth, every time I've consulted the wikipedia for matters within my areas of expertise, it's been nothing but accurate.

You are exactly right, JM.  Here's my prediction of what will happen (based on how the Roberts court acted in the recent case dealing with parental consent):

1.  The lower courts will enjoin the law, but it will take several months to get to the Supreme Court.
   
2.  SCOTUS will say, "You've prematurely enjoined the entire law, when only parts of it are potentially unconstitutional."
   
3.  Roberts will convince Kennedy to go along with a substantial restriction on the application of the "health exception" in Doe, making clear that it should only apply to extremely serious physical ailments.
   
4.  SCOTUS will narrow the injunction to only prohibit enforcement of the law in cases where there is "serious physical harm" (or potentially also in cases of rape and/or incest), and allow the rest of the law to be implemented.  SCOTUS will not address the substance of the case the first time around, only the scope of the injunction.
   
5.  At the same time, SCOTUS will remand the rest of the case for a trial/factfinding, which will take 1-2 years, to determine what kinds of "serious physical harm" are typical, how many abortions due to rape, etc.
   
6.  By the time it comes back to SCOTUS, hopefully, there will be one more vote in favor of overturning (or substantially limiting) Roe and Doe.  If not, Roberts will still be able to convince Kennedy to sustantially limit the holding in those two cases, enough to allow practically any limitation that would be likely to pass in most states.

I know that Jackson isn't looked upon terribly favorably these days, but maybe he's maligned.  Nonetheless, and like I said above, it seems that -- for PR reasons if nothing else -- your example of taking a stand against the judiciary shouldn't be the wrangling that lead to the Trail of Tears.  Many (alright, I'll lay my cards out, since this doesn't seem like it should be at all controversial: many, including me!) would say that this is a prime example of the dangers of selectively ignoring an entire branch of government.  Whether or not you like him for continuing the nation's expansion or for being more of a "common guy" is beside the point here.  

I think that the MA court's decision on gay marriage is an interesting case.  Personally, I'm in favor of gay marriage, but am uncomfortable with how it came about in this case.  Let's say, for argument's sake, that the court did indeed do the wrong thing.  What's the right thing for the legislature to do, given this?  I think that recognizing that the court has made a bad ruling does not entail ignoring that court's decision.  If you accept that it's the court's job to tell you what's constitutional, then you can't ignore them when they tell you that it's unconstitutional to deny the rights of marriage to gay couples, even when you disagree with that ruling.  

"whatever now is established, once was innovation". He could have added that those who argue for preferred precedents, and they are preferred, are like strollers thru a fruit garden,picking as they please.  Go easy on my heart please.  If precedent is to be taken seriously you are left with the ineluctable position of having to go with enumerated powers and a true federalism, otherwise you're just strolling thru that metaphorical fruit garden,"I like that, I don't like the other", about as sound as a sieve.  To say precedent is law, think please, is quite the same as saying the Supreme Ct writes law, and law that supersedes the constitution.  Interesting that past and fairly recent courts have overturned prior decisions, hmmm good, but to oiverturn or revise those rulings borders on sacrilege, hmmm bad.  Not very sophisicated!  Put Roe in the garbage can where it belongs and turn the issue over to the States where the issue belongs.  Go South Dakota!

It seems like they should have made an exception for rape. This will be too easy for abortion folks to blow out of the water.

some inconsistency or wavering in  a few of your comments, please note your response to Neil Stevens where you appear, I say appear, to continue to link Jackson to Trail of Tears and therfore a flawed view of Court and Constitution however the use of of the word "purportedly".  But I'll take a share of the blame if I misread you.  The overall thrust of my post remains as is, links to Indian mistreatment do not alter a proper and comprehensive view of the relationship among co-equal branches of government.  You say that Wikipedia is your memory; does it inform you that Jackson is largely, if not soley, responsible for clearing out much of the lower soutwestern territories of some of the most disreputable elements imaginable. That in Florida and Louisiana he made these areas safe for habitation and cultivation?  I trust that your source comments on his fight against disunion and nullification as well as his battle against the 2nd Bank of the U.S., important and vital issues regardless of how you come down on them.  Must close, thanks for your response and happy to be corrected as appropriate.

The callous way with which you calculate the use of infanticide on demand to work to the benefit of your political party makes me want to gag. You're offended because I mentioned that every proponent of abortion has blood on their hands? Well, I'm offended that there are people such as yourself out there who pander to their political base by exploiting the potential deaths of more innocent children for political purposes, as well as the heart ache and medical/mental/emotional problems those women who do resort to infanticide will have later in life as a result of killing their own children.

You're offended that that someone has pointed out that there is blood on your hands (as there is upon the hands of every endorser of child murder), and yet you take no offense from the death of millions upon millions of babies in the womb.

If you don't like be called an accomplice to child murder, or have it pointed out that your callous political calculations are cold hearted to the point of wickedness, then perhaps its time you rethought your worship of Molech.

I certainly support overturning Roe and throwing the whole issue to the states. They can carry out the wishes of their people.

Well, I definitely apologize if there's any inconsistency or lack of clarity in my points here.  I'm really not trying to say that Jackson's presidency was a failure; I was aware of his fights over the Bank of the US, and there certainly were good consequences as a result of many of his policies.  You should read the wikipedia article in question if you're trying to question is lack of thoroughness or impartiality.  And if you think it is lacking on either count, then you have the power to change it, unlike similar types of reference works.

My point, as simply as I can put it, is this: whatever your views are of Jackson's presidency overall, and whatever Jackson actually did vis-a-vis the Cherokee, you should admit that most people are horrified by the cavalier attitude of "The courts have made their decision, now let's see them enforce it."  Maybe Jackson never said this, and maybe he didn't have any power over the situation anyway, but it's still germane to bring up because someone way upthread brought up the idea of the Old Hickory move.  Anyway, I think that they are horrified by this attitude for two reasons: 1) Selectively ignoring a branch of government is a Very Bad Thing, and 2) in this case, most people think that Jackson was wrong: the Trail of Tears that resulted in the legal wrangling (though it didn't actually occur until after Jackson's presidency ended) is thought of as a national tragedy.

Well, maybe that wasn't so simply put.  But anything that I may have said about Jackson's presidency over all, or the historical facts of Jackson's role in the Trail of Tears could be put aside.  If your view is that the SC is out of control and that we should ignore their rulings, you have a pretty tough case to make, and a still tougher case if you want to tie this all to Old Hickory's (purported) case of doing just that.

Once Roe is overturned because it's just bad law (i.e. there's no place in the Constitution that gives the federal government jurisdiction ... it's a states' rights issue), is there a way to then stop the procedure nationally?  Would a federal law banning it be unconstitutional as well?

I noticed it too.  It's right here:

By the way, I bet that you wouldn't have this opinion if, say, the Massachusettes legislature passed a law allowing all abortions legal under any circumstance and the Supreme Court struck it down.

Those of us who believe that the constitution does not currently either allow nor prohibit abortion, and that the decision should be left to the states, are not just staking out a position that we think would play electorally.  It is what we believe.

Barring a constitutional amendment, MA could allow drive by abortions.  For that matter, they could allow infanticide in the delivery room.  Fully born, living, breathing, crying babies.  We happen to believe that even that is a little far for the MAians, but it is federalism.

I agree with you, and they should have included an exemption for health of the mother, too. The current bill is too easy for pro-choice courts to invalidate.

1) Go over to PollingReport.Com and you will see that a majority of people do not wish Roe v Wade overturned. 2) Overturning Roe will mean the loss of a conservative political issue which may turn into a gain for liberals, who will then take every chance to exploit its consequences. I can just read the headlines now: 'Thirteen year old dies at home in botched abortion attempt.' 'Pregnant woman bleeds to death in backalley. Police looking for alleged abortionist.' Police found up abortion ring plagueing Denver schools.' And so on. 3) Rove wants the issue, not the reality.

1.  The response to MA was to create a bunch of marriage amendments - not a bunch of anti-judicial-fiat amendments more generally.  Exactly no one nationally gets worked up when states like Kansas are ordered by their courts to fund their schools adequately, so it seems hard to understand that the issue was "judicial activism" rather than "a policy we don't like."
   
2.  If "judicial activism" were the problem, I would imagine there might be a similar backlash against state legislatures that do things they know violate current federal constitutional law, which Roe is right now whether one likes it or not (I do not).  

Coddling and kid gloves is no way to achieve change in these people.

If murder and rape are a state issues, I can't see how abortion would be a national one.

2/3rds of Americans support Roe, but only 20-30% support abortion when the reason is financial hardship or a mother "not wanting a child."  This follows from a misleading belief that overturning Roe will outlaw ALL abortions.  The vast majority (70+%) of the country agrees with the 3 exceptions: rape, incest, and life of the mother but no others.  That's about 5% or less of all abortions in America.  The other 800,000 a year are not supported by most Americans.

I can't predict what would happen after Roe fell, but if Rs took the 3 exceptions position they would not see any backlash. If they reach for a SD-style 1 exception (life of mother) law, there may be a backlash.  My guesstimate is that not enough D.C. politicians will want to vote on anything so it will stay in states, where it belongs.  There each legislature will approach it in a way where they fit their state.  So SD, NE, OK, etc will have 1 exception laws.  Most of the South and Midwest will have a 3 exception law.  And the NE and West Coast will have similar laws to what they have now.  In that case, there is no major political "backlash."  But as I said, it's very hard to predict what would happen.

Do you know why Republicans there voted no?

If most or all of them voted No because they favor a rape and/or incest exception, I have a hard time calling them RINOs.

In fact, if people who favor those exceptions are RINOs, my suspicion is that ther are more RINOS in the party than real Rs.

The response to MA was to create a bunch of marriage amendments

The amendments were put in place to stop the justices on other states' Supreme Courts from following the MA court's lead and inventing something out of whole cloth. It would've been much harder for the Imperial Court of Mass to justify their actions had the issue been specifically addressed in the state constitution. They might've still done it of course... who are they to be bound by the actual words of the constitution. They'll just do whatever they like and answer to no one.

If "judicial activism" were the problem, I would imagine there might be a similar backlash against state legislatures that do things they know violate current federal constitutional law

Legislators are elected and accountable to the people. That makes for a huge difference. If people don't like what a legislature does they can vote them out of office and the next legislature can overturn what was done.

So they might as well have not passed any bill. Health of the mother includes things like "it will totally bum me out if I can't get an abortion." Rape can be claimed whether it happened or not.

Yes... those certainly are the pro-abortion talking points.

I haven't thought this reasoning through, so forgive me if it turns out to be logically flawed, but perhaps this is due to the following dynamic: is it possible that Republicans of various stripes are fairly uniformly distributed throughout the nation, while Democrats are highly polarized by ideology?  That is to say, I would imagine if one took a poll of Republicans on abortion, about two-thirds of Republicans would favor ending abortion unless the mother's life was in danger or her health was in serious jeopardy (some may include rape and incest too, though I'm not sure of any of these numbers).  So perhaps that ratio of Republicans is fairly consistent throughout the nation, and wherever you go, you'd find about two-thirds of Republicans who would favor a blanket abortion ban.  And perhaps it's the Democrats who are polarized by region, so that even though nationally the ratio of Dems that would vote for a ban like this is maybe 1 in 5 or even 1 in 10, the bulk of those pro-life Dems are highly concentrated in the most conservative parts of the country.  This could also be true of other conservative/liberal issues as well.  

Thoughts?

6-4 Ds (60%)

17-8 Rs (68%)

Sorry, I'm not a lawyer so this question might be silly (I guess if even I think it's silly, it probably is), but say for instance a state decided that murder or rape were not criminal activities, does the federal goverment have any way to protect that state's citizens from those crimes?

...if the US Constitution were amended to make abortion illegal (for which a case could be made, as abortion violates the rights of the unborn to "life, liberty, and the pursuit of happiness"), then it would seem that the federal government would then have the legal and moral authority to do away with abortion completely through proper legislative action (as opposed to court activism, which we have now).

I mean hey, they amended the US Constitution to do away with the institution of slavery. There aren't many states these days fighting for the right to determine whether people in their states can own another human being...

Whether such an amendment could ever get passed is a different question altogether, however. I'd vote for it whole heartedly, even though I'm a proponent of state's rights, if it would stop the slaughter of innocent children.

The Federal government not only has the right, but indeed the responsibility, to protect US citizens from tyranny and villainy, including such that might be "legalized" by a state government. I'd have to break out my Constitution to point out the various articles, and at the moment I'm not at leisure to do so.

on your interpretation of the Constitution.  A strong federalist would probably say no.  If the voters of MA or SD want to make murder legal, that is their choice.  However, in the wake of slavery and Jim Crow, the mainstream legal view is that the federal government can intervene pretty heavily when "rights" are being curtailed.  Since this goes as far as voting rights and who one hires, I'm sure it would apply to murder and rape as well.  Some of the more well-read abortion proponents think Roe was wrongly decided but are afraid that the federal government will try to pass a ban if Roe is overturned.  I don't think they will want to touch i