Blogging has been light because things are busy, but I wanted to interject my two cents on the South Dakota law.

For those living in a cave, the governor of South Dakota has signed into a law which would effectively prohibit all abortions in the state, including abortions which are necessary to protect the health of the mother.  There is no exception for mothers who got pregnant by rape or incest.

There’s plenty to find objectionable about such a law, which is why The Rude Pundit offers this rude solution:

Here’s what we do: the age of consent in South Dakota is 16 years old, so this’ll be easy. We gotta get a bunch of the smoothest black motherfuckers around, sweet-talkin’, hot lookin’ African American males, we’re talkin’ some Terence Howard or Andre 3000 or Taye Diggs-lookin’ and actin’ dudes, and get ’em on board for a mission to South Dakota, where the past-the-age-of-consent (which is, by the way, 16) white pussies are tight and virginal and ready for fuckin’.

…Fuckin’. Lots of fuckin’. All consensual. All without drugs or alcohol. All above 16. Just pure, passionate, oh, shit, ain’t this fun, fuckin’. The cherry poppin’ noises’ll make it sound like New Year’s Eve. Those upstandin’ Christian white girls’ll be shoutin’ their "Hallelujahs" and "Amens" and really know what those words mean.

…Over the next few weeks, months even, as periods are missed and crocodile tears are shed (for, indeed, there will be few real regrets), you can pretty much bet that abortion on demand will become the law of the land in South Dakota so fast that it’ll seem that yesterday never happened.

Well, yes, that’s one way, I suppose.

But my idea is much better (and less rude): Let the law — and the other similar draconian anti-abortion laws now being enacted across the country — work their way through the courts.  And eventually lose.

Look, let’s be honest about the South Dakota law.  The legislators of SD wrote it knowing full well that it violated the holding of Roe v. Wade.  Their obvious hope is that the new Roberts Court — with the addition of Alito — will overturn Roe.

The problem with their thinking is this: the Court needs a legal justification to overturn Roe.  Let me stress that: the Court needs a legal justification.  It’s not enough for the Court to say, "Well, we think that Roe was wrong."  They will have to explain why Roe was clearly wrong.

Again, merely disagreeing with Roe is not enough.  Courts will only overturn their precedent if their prior decision was WRONG.  Demonstrably.

Worse than that, they will need to explain why Casey was wrong.  Casey was the case in 1992 which upheld Roe.  Casey talked about the importance of precedent and stare decisis, and how you need some strong and tangible reason for overturning precedent.

So . . . for South Dakota to win, they would need to convince the Roberts Court of two things: (1) the reasoning of Roe was wrong (i.e., the Court’s reasoning about abortion was incorrect); and (2) the reasoning behind Casey was wrong (i.e., the Court’s reasoning about precedent was incorrect).

That is an unbelievably high hurdle.

You see, more than anything else — and certainly more than any hot-button issue of the day — the Court is most concerned with the legitimacy of itself.  If the Court effectively reverses itself for no other reason than the fact that different people are wearing the robes, then the Court stops being a legal institution, and admits that it is a political institution.  And while many laymen think the Court acts politically, do you think the Court will openly admit it?  Of course not.

The arguments for and against abortion are no different than they were in 1973, when Roe was decided.  They are no different than they were in 1992, when Casey was decided.  South Dakota is running up against "super-precedent" and coming to the Supreme Court armed only with the hope that the Court’s composition will make all the difference.  But that’s not a legal argument around which the Court can write an opinion.

And I hasten to add that five of the nine present justices were on the Court back when Casey was adjudicated, and came down in favor of upholding Roe.

The result?  South Dakota loses.  And for a third time in 33 years, abortion rights gets the nod from the highest bench.  It becomes (for lack of a better legal term) "double super-duper precedent".

So I think pro-choice advocates should welcome the South Dakota law.  The timing couldn’t be better.  Here’s how it plays out — in the next few weeks, a federal district court, bound by Roe and Casey, rules that the South Dakota law is unconstitutional.  So nothing changes in the real world from the way it was a year ago.  The case goes up the chain of federal courts, where it finally reaches a reluctant Supreme Court in a couple of years.  It loses.  And the whole thing goes away for a while (at least as far as legal chellenges are concerned).

UPDATE: By the way, as Think Progress points out, the South Dakota law is not only offensive, but weird.  While it prohbits abortions in the case of rape, there is a small exception: a rape victim can have an abortion if she’s not certain that she was made pregnant by the rape.  This makes absolutely no sense.  If you take the position that the fetus is a life entitled to protection, what difference does it make whether or not the mother knows she is pregnant?  The provision flies in the face of the anti-choice argument that the state of mind of the mother (i.e., her choice) is relevant.

Digby pointed out another weirdness about the SD law.  State Rep. Bill Napoli (R) said on PBS Newshour that exceptions can be made for rape or incest under the provision that protects the mother’s life (but, I repeat, there is no protection for the mother’s health). Napoli gave one such scenario:

A real-life description to me would be a rape victim, brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it, and is impregnated. I mean, that girl could be so messed up, physically and psychologically, that carrying that child could very well threaten her life.

See how that works?  If you are a virtuous woman, then the life exception applies, because a pregnancy which threatens your physical or psychological health threatens your life.  But (and this is the catch), that only works if you are a virgin.  Sinful women who have had sex, according to the Napoli reasoning, might have psychological or physical health problems, but because of their sluttiness, their actual life is not endangered.

Go figure that out, because I sure as hell can’t.