Avoiding the Dare
Some months ago, I blogged about "the dare doctrine," suggesting that South Dakota's law banning all abortion except to save the life of the mother was akin to a game of chicken, daring the Supreme Court to void South Dakota's own interpretation of the breadth of the privacy right in our Constitution.
Yesterday, a majority of South Dakotans voted to repeal that state law. I note the back and forth here. The Supreme Court in 1973 decides Roe v. Wade, not a popular decision then, but one that whose subject matter (permissive abortions) had been gaining currency in the state legislatures. From 1973 onward, some describe the anti-choice/pro-life movement as a "backlash" against an "activist" Roe court. Since then, state legislatures and the U.S. Congress constantly debate how to put fetal rights back on the table. Constitutional amendment? State laws restricting access to abortion? The latter took hold (see Casey) and grew stronger until in 2006, South Dakota legislators pass the law that restricts all abortions except to save the life of the mother. This openly defies Roe v. Wade, pitting the sovereign state of South Dakota against the Supreme Court. Which sovereign decides the scope of the privacy right? Instead of taking the constitutionality of that law to court, South Dakotans mobilize to repeal the law that their elected officials voted onto the books. This is an instance where truly "the people" are sovereign and have spoken -- not the elected officials purporting to speak for the people, and not the courts who, in issues of fundamental rights, also purport to speak for “the people” as individuals as against the tyranny of the majority. The people of South Dakota had the last word on their constitutional rights … at least for now.
