With Justices Alito and Roberts now comfortably on the Supreme Court, state legislatures are getting busy. South Dakota has just passed a law making it a crime to perform any abortion, except to save the life of the pregnant woman. The law has no rape or incest exception and no exception for the health the mother. This bill is uncontroversially unconstitutional. The aspiration of the South Dakota legislators must be that when they swore to uphold the Constitution of the United States (as well as the South Dakota constitution) they were not committing perjury not because the Supreme Court got it wrong 33 years ago when it decided Roe v. Wade, and wrong each time since 1973 when it has reaffirmed a woman’s right to terminate a pregnancy when the pregnancy threatens to harm her body (most recently, three months ago, in November, in Ayotte v. Planned Parenthood of Northern New England, authored by Justice O’Connor).
I wonder if the South Dakota legislation isn’t also unconstitutional because it calls the Supreme Court into a game of chicken. “We know you, Supreme Court of the United States, have explicitly held otherwise, but we are right and you are wrong. We dare you to make us take it back.” (This might be a new constitutional doctrine, birthed here, “the dare doctrine of unconstitutionality.”) But really, isn’t there a constitutional problem when state legislatures openly defy the Supreme Court of the United States in an effort to egg on its newest members to reverse entrenched precedent? Hasn’t the Supreme Court said as much, and recently, when it chided the New Hampshire legislature for passing a clearly overbroad law (one, interestingly enough, that did not provide for a health exception in the case of a minor seeking an abortion), because New Hampshire was hoping (expecting?) that the Supreme Court would whittle it down to a constitutional size for them? See Ayotte v. Planned Parenthood of Northern New England (“we are wary of legislatures who would rely on our intervention because it would certainly be dangerous to let legislatures set a net large enough to cast all possible offenders and leave it to the courts to step inside”).
You might say this is what the laboratories of the states are for – to encourage and push change on a national level. But this is not a case of creative litigation, challenging the doctrine around its edges, or making room in the legal landscape for new and improved technology that changes how we live as a society. Here, the states are openly defying clearly established constitutional law, depriving its citizens (citizens of both the state and the federation) of constitutionally protected rights. If a state can violate the supreme law of our land with impunity – daring the Court that defines that law to a challenge much like when a child tests her parents by asking “did you mean it when you said 'no'” – what is next? What prevents a state from ever passing a law contrary to clearly established Supreme Court precedent because it hopes (expects) that the Court will someday soon change its mind?