The Plot Thickens in South Dakota

Things were looking good for opponents of South Dakota's ballot measure that seeks to ban almost abortions in the State. A major poll revealed over the weekend gave them a 10-point lead over the folks who want to pass the measure so that it may be heard and resolved (in their favor, by overturning Roe v. Wade) by the United States Supreme Court. Then came Monday afternoon-- and a long-ago argued ruling by the 8th U.S. Circuit Court of Appeals which decided by a vote of 2-1 to keep in place a trial judge's injunction that has prohibited state officials from enforcing an existing abortion notification and consent law in the state.

The conservative federal appeals court told South Dakota, and Planned Parenthood, that the trial judge had gotten it right; that existing constitutional law, as handed down by the Supreme Court over the past generation, does not at the present time allow a state to impose those pre-conditions without voiolating the first amendment rights of the doctors who have to deliver the message to the woman seeking an abortion. Furthermore, both the trial court and appeals court agreed that the "notification" requirement that South Dakota would have imposed was merely "a value judgment" by state politicians "rather than medical facts" that might have brought more heft to the argument. And the courts agreed that the State could not fix the perceived constitutional problem by allowing doctors to "disassociate" themselves with the warning they were being asked to give a woman before they would perform an abortion upon her. There was a strong dissent.

It will be fascinating to see how this ruling shapes the final week of campaigning in South Dakota on the issue of abortion and abortion rights. Will supporters of the ban pounce upon the ruling as just another example in their minds that federal judges are out of touch with what the majority of voters in South Dakota want as their policy choices for abortion? Will the ruling sway momentum away from opponents of the measure and toward their counterparts? After all, it's not terribly glamorous or sexy, and it certainly doesn't make for good campaign ads, when you have to defend a dense federal appeals court ruling as the latest expression of well-settled law.

It also will be fascinating to hear whether anyone takes a shot at the appeals court judges for the timing of the publication of their decision. Why did they interject themselves, at a most pointed moment, into one of the most divisive issues currently facing the country? The case was submitted to the 8th Circuit in mid-April-- why didn't the judges simply wait a few more weeks before issuing this ruling? The courts are supposed to be immune from the political process and judges are supposed to be congenitally short on good-timing. But, still. A crazy, intense, go-for-broke election year in South Dakota may have just gotten a little more crazy and a little more intense.

By Andrew Cohen |  October 31, 2006; 8:30 AM ET
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Interesting question about the timing. I certainly think it's fishy.

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Posted by: wowgold | December 4, 2006 08:32 PM

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