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08 March 2006

UFO aliens turn South Dakota legislature into Fundie Zombies. Here's what's next.

South Dakota's new anti-abortion law was caused
by Aliens who screwed with wheat farmers' heads
when their UFO made this crop circle in the middle
of the night. South Dakotans had previously been
relatively sane and decent people.
UFO Aliens hate women.
(Vleeptron Ministry of Political Disorders.)

Although Vleeptron has posted several seminal federal court decisions regarding women's reproductive health and the controversial Constitutional Right to Privacy (Griswold), Bob is NOT a Constitutional Lawyer. Bob is NOT a Lawyer of any kind.

However now and then newspaper journalists are forced against their will to pretend they understand something with relative accuracy about The Law. Especially when some Kourthouse Klown Krap actually threatens to kill and victimize a lot of the readers.

Television gigglejournalists never have to take on such mind-boggling challenges.

Twinki O'Pretty
of the Action 6 News Team says:

"If you can't take its picture,
it's not news!"

TV jumps in the van to cover this beat when there's a riot outside the Planned Parenthood clinic, or a shooting or a bombing.)

The Twin Cities -- Minneapolis and, across the Mississippi River, Saint Paul -- are the nearest cities to South Dakota, which only has wheat. The Star Tribune has a pretty good rep, or at least has been relatively scandal-free for some decades as far as I know.

The fundie-captured SD legislature is trying to terrify all American women of child-bearing age. Here's how scary their crap really is, here's a pretty precise summary of what American women now have to worry about as the USA prepares to change its name to The Republic of Gilead. Get set to Follow The Drinking Gourd again.

* * *

The Minneapolis Star Tribune
(Minnesota USA, South Dakota's neighbor state to the east)
Monday 6 March 2006

Q&A: All about
South Dakota's
abortion law

Everything you ever wanted to know,
and more, about what happens
to the South Dakota abortion ban.

by Eric Black, Star Tribune

The South Dakota Legislature has passed a law that is unconstitutional under current Supreme Court doctrine, and Gov. Mike Rounds has signed it.

The law would ban abortions, except when necessary to save the life of the mother. It directly contradicts the U.S. Supreme Court's ruling in Roe vs. Wade (1973), reaffirmed in Planned Parenthood vs. Casey (1992), that a pregnant woman has a right to choose to have an abortion.

Q: Why pass a law that you know is unconstitutional?

A: The Legislature expects the law to give the Supreme Court an opportunity to overturn Roe, making an abortion ban constitutional.

Q: If the plan succeeds, would abortion be banned nationwide?

A. No. It would mean they would be banned in South Dakota and six other states: Arkansas, Illinois, Kentucky, Louisiana, Missouri and Montana. Those states have passed so-called trigger laws, which would automatically ban abortion if Roe is overturned. Several more states are following South Dakota's lead and passing abortion bans that contravene Roe. If Roe is overruled, the legislatures of the other states, including Minnesota, would be free to ban abortions, keep them legal, or regulate and restrict them in new ways.

Q: Will the plan succeed?

A: Probably not, unless there is a change in the Supreme Court's makeup. It would take five justices to overturn Roe. Two justices, Antonin Scalia and Clarence Thomas, have clearly indicated a readiness to vote that way. The two newest justices, Chief Justice John Roberts and Justice Samuel Alito, are conservatives, and abortion opponents have high hopes that they will vote with Scalia and Thomas. Alito and Roberts got through their confirmation hearings without saying how they would rule if a fundamental challenge to Roe comes before them.

But the other five justices have affirmed Roe or have indicated a willingness to do so. Four of those five -- Justices Stephen Breyer, Ruth Bader Ginsburg [formerly chief litigator for the American Civil Liberties Union], David Souter and John Paul Stevens -- appear solidly in the pro-Roe camp. Justice Anthony Kennedy voted to affirm Roe in the 1992 Casey ruling, but many court analysts believe he is [the] wobbliest of the pro-Roe camp.

Some, such as Leslee Unruh of Sioux Falls, S.D., one of the leaders behind the South Dakota abortion ban, believe the court might find the ban constitutional, even without any change in personnel. But most Supreme Court analysts say there are still five votes to sustain Roe.

Q: So why are the South Dakota legislators doing this?

A: They hope that by the time the court reviews their new law, the court makeup will have changed. This is based on several premises, none of them certain. But unless Kennedy changes his position, the scenario comes down to this: the two new justices are ready to overturn Roe and -- between now and the time the South Dakota law is argued at the Supreme Court -- at least one of the pro-Roe justices has been replaced with another justice ready to vote against Roe.

"They seem to be betting on several things," said law Professor Thomas Berg of the University of Thomas, "how the new justices will vote, who will retire, who will replace them, how that person will vote and when all this will occur. And none of those bets are sure things."

Q: Why do they think they will win all those bets?

A: The bill's chief sponsor, Rep. Roger Hunt, has said the possible retirement of Stevens, 85, who supports Roe, makes it a "very real and very viable" possibility that by the time the South Dakota law makes it way to the court, a fifth vote to overturn Roe will have arrived on the scene.

But close Supreme Court watchers say that despite his advanced age, Stevens appears to be in good health and enjoying his work after 30 years on the court. Further, since Stevens is among the most liberal and most reliable abortion rights supporter on the court, there's little reason to assume that he would hasten his retirement at a time when Republicans control the White House and the Senate.

Of course, if Stevens or another of the pro-Roe justices developed a health problem while the South Dakota law is making its way through the lower courts, that could trump such political considerations.

Q: How long will take to make its way to the Supreme Court?

A: Estimates range from less than a year to three years, possibly more. The current biggest abortion case on the docket is the federal law outlawing the late-term abortion procedure that opponents call "partial-birth abortion."

President Bush signed that law on Nov. 5, 2003. The Supreme Court agreed last month to hear the challenge to that law. The hearing will be no earlier than this fall and the ruling will probably come down in 2007, about three and a half years after the law was signed.

The South Dakota case might go faster, according to constitutional law Prof. Suzanna Sherry of Vanderbilt University. The case is very straightforward, she said. The judges who review it on the way to the Supreme Court will have little difficulty ruling, without a trial but based on briefs and oral arguments from the lawyers, that the South Dakota law conflicts with Roe and Casey and is therefore unconstitutional (unless it turns out that the Supreme Court has changed its mind about Roe, but the lower courts can't decide that for them.)

Said Berg: "If they think the Supreme Court should change the basic ruling in Roe, they can say that in their opinions. But they can't do it for them. The job of the lower courts is to follow the existing precedent."

Q. How does it get from where it is now to a Supreme Court ruling?

A: First, there could be a ballot challenge. South Dakota has an unusual provision in its Constitution allowing a new law to be referred to the voters to decide whether they want it to take effect. Planned Parenthood has said it is contemplating this option. It would need to get 16,278 signatures on a petition by June, which would suspend the law and place the question on the November ballot.

If the voters reject the law, that ends the matter. If the voters approve the law, or if this ballot option is not pursued, the matter goes to the court.

A lawsuit could be filed in state or federal court. Sarah Stoez, president of Planned Parenthood for Minnesota and the Dakotas, said federal court was the more likely.

Planned Parenthood does not have to wait for the law to take effect and for some woman, who has been refused an abortion under the law, to serve as a plaintiff. The plaintiff could be a medical provider or Planned Parenthood itself, saying it wants to provide abortion services and is prevented from doing so by the law, according to Sherry. Or it could be a woman who would say that a pregnancy would be detrimental to her health and she is unable to have sex with her husband under the circumstances because the law would prevent her from getting an abortion if she becomes pregnant. Sherry said several abortion laws have been challenged before they took effect and the courts have accepted the cases.

Planned Parenthood also plans to seek an injunction, preventing the law from taking effect during the appeals process.

Legal analysts say it was fairly safe to assume that the courts will strike down the law and issue an injunction. The losing party in that action can appeal. If it's a state court case, the appeal would go to the South Dakota Supreme Court. If a federal court action, the appeal would go to the Eight Circuit Court of Appeals, which covers a stripe of seven states down the middle of America, stretching from Minnesota and the Dakotas down to Arkansas.

Again, analysts assume the appeals courts would rule against the state law, on grounds that it violates the U.S. Constitution, as interpreted in Roe. If the case is on the federal track, there is a possible additional step. The Eighth Circuit will have heard the case through a three-judge panel. The loser can ask for a rehearing by the all the judges on the circuit, although it is up to the judges whether to grant that request.

A final appeal can be made to the U.S. Supreme Court, which must decide whether to take the case. This is the most unpredictable moment in the process. Four of the nine justices must agree to hear the case for it to get on the docket. The court does not reveal who voted in favor or against taking the case.

It is possible that after all these steps, the Supreme Court decides not to hear the case. If there has been no turnover in the court and the case is declined, it will be presumed that the pro-Roe majority sees no need to restate the existing doctrine, while the anti-Roe minority sees no advantage in forcing a vote that it will lose.

If the moment comes that the Supreme Court decides to hear this case, it will cause a major sensation. If it occurs after a new justice has replaced one of the former Roe supporters, it will be taken as a signal that Roe might be reversed. If it occurs without a change in the court's lineup, it might be taken as a signal that the pro-Roe faction has decided to reaffirm or clarify the fundamental ruling that the Constitution includes a woman's right to choose an abortion.

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