Does South Dakota's New Abortion Ban Cross the Line Between "Test" Legislation and Defiance of the Supreme Court?

Last week, South Dakota enacted a new law banning nearly all abortions. The law clearly violates Roe v. Wade and subsequent decisions of the U.S. Supreme Court. Thus its application will almost certainly be enjoined by the first court to hear a challenge to it.

That, of course, is the very point of the new law: Pro-life legislators in South Dakota hope to use it as a vehicle to urge the Supreme Court to overrule Roe.

Is such blatant violation of the Supreme Court's governing law appropriate? Is it consistent with the oath that all elected officials--including South Dakota legislators--take to uphold the Constitution?

Probably. Although it is doubtful that the Supreme Court will in fact use the South Dakota law to overturn Roe, the very fact that the Court sometimes does abandon its prior precedents means that legislatures must have some leeway to pass laws that violate current constitutional doctrine.

As I explain below, however, the line between permissible test legislation and impermissible defiance of Court precedent is not entirely clear.

The New South Dakota Law

The new law is an all-but-outright ban on abortion, defined as the deliberate destruction of a human life at any point after fertilization. The law makes an exception for abortions "designed or intended to prevent the death of a pregnant mother," but it makes no exception for circumstances in which continuing pregnancy would result in a serious risk to the health of the woman. Nor does the law make any exceptions for abortions that are the result of rape or incest.

Despite defining fertilization as the beginning of the life of an "unborn human being," the South Dakota law does not ban methods of birth control that operate to prevent implantation. It contains language expressly permitting contraception that "is administered prior to the time when a pregnancy could be determined through conventional medical testing."

Even with this caveat, however, the new law prohibits abortion from very early in pregnancy, for it provides that as soon as a woman discovers she is pregnant, she is prohibited from having an abortion.

The law does not expressly make it a crime for a woman to have an abortion. Instead, it criminalizes providing an abortion by making such conduct a class 5 felony, meaning that a doctor or other person convicted of performing an abortion in South Dakota can be sentenced to up to five years in prison and fined up to five thousand dollars.

The Law Clearly Violates Established Precedent

The new law blatantly violates existing constitutional precedent. Under Roe, as explained and modified by subsequent cases, a state cannot prohibit any abortions until after viability, the point in pregnancy at which the fetus can survive outside the womb.

Exactly when a fetus is viable has been contested. A normal pregnancy lasts about 40 weeks. Infants born after gestating only 26 weeks sometimes survive, although they rarely thrive. And some pro-life advocates have suggested that viability can occur even earlier still. However, no one thinks that viability occurs within the first few weeks of pregnancy. Yet even then, the South Dakota law prohibits abortion.

Moreover, the Court's cases require that a woman be given the legal option of aborting even a viable fetus if continuing the pregnancy poses a risk to her health. Yet South Dakota does not make an exception for non-life-threatening risks to health.

Accordingly, any court that faithfully applied the controlling Supreme Court precedents would have to enjoin the enforcement of South Dakota's blatantly unconstitutional law.

Have There Been Medical Advances Since 1973?

Given that the law obviously violates Roe, why did the South Dakota legislature think it could enact it? One possibility is suggested by the text of the law itself. Section One of the Act invokes evidence received by a South Dakota task force suggesting scientific advances since Roe was decided in 1973.

The so-called scientific advances do not, however, appear to bear on the applicability of Roe. The key fact recited by Section One is "that each human being is totally unique immediately at fertilization." But to the extent that this is even a scientific fact, it was well-known in 1973.

To begin, each human being is not "totally unique." Identical twins have the same genes, and even completely unrelated humans share nearly all the same genes. Indeed, a human and a chimpanzee share nearly all the same genes.

And even if one were to focus solely on the bits of our DNA that differentiate us from chimps and each other, what possible bearing does the "uniqueness" of each human's DNA have on the question of when a human attains the legal status of a person whose rights and interests can trump those of other humans? That is a legal conclusion, not a scientific fact, and the Supreme Court recognized as much when it decided Roe in 1973.

Of course, this is not to say that everyone finds the answer given by the Court in Roe persuasive. Plainly, many people do not. But to the extent that Section One of the new South Dakota law purports to render Roe obsolete as based on outdated science, it is misguided at best.

The Real Change: The Supreme Court's New Personnel

Everybody understands that the real change underlying South Dakota's law is the recent change in the Supreme Court's membership. The South Dakota legislature is betting that Chief Justice Roberts and Justice Alito will vote to overrule Roe, whereas Justice O'Connor was, by the time of her retirement, a supporter of a constitutional right to abortion.

Is a change in Supreme Court personnel a legitimate basis for a state legislature to enact a law that clearly violates established precedent?

One might think not. After all, constitutional law is supposed to be impersonal, transcending any individual judge or Justice. This supposition is reflected in the Court's practice of referring to rulings made by Justices long dead as "our cases," and saying "we" even when describing decisions from prior centuries.

The Justices do not deny that they sometimes overrule their precedents. Circumstances may change, and when they do, that can justify overruling a prior decision.

But a mere change in the Court's personnel has never been thought to constitute the sort of changed circumstance justifying a departure from precedent.

The Legitimacy of "Test" Legislation

Nonetheless, the Court's personnel do make a difference. Different Justices come to the Court with different attitudes, philosophies, and values. We expect them all to be respectful towards precedent in general, but because there is no strictly mechanical test for determining when to overrule a precedent, we also understand that attitudes, philosophy and values will play a role in any given Justice's decision whether to adhere to or overrule any given precedent. That is why Supreme Court appointments are so important and so divisive politically.

Given the legitimacy, indeed the necessity, of the Supreme Court's sometimes overruling its own precedents, legislators must be able to enact some laws that they know to be unconstitutional under existing precedent, but which would be found valid if the Court overruled those precedents. Otherwise, the Court would never have the opportunity to reverse itself--for the simple reason that no case challenging the prior rulings would make it into court. Precedents would remain in force, constraining elected officials, long after the Court was willing to overrule them. Thus, legislatures should be able to enact "test" legislation--laws designed to test the continued vitality of some established line of precedent.

Consider an illustration. During roughly the first third of the Twentieth Century, the Supreme Court interpreted the Constitution to prohibit many instances of progressive legislation. The Court invalidated laws setting minimum wages and maximum hours. It even held that Congress lacked the power to prohibit the sale of goods produced with child labor.

The Justices eventually overruled these decisions in the late 1930s, but they were only able to do so because state legislatures and Congress had continued to enact progressive laws--as test legislation--in the hope that the Court would reconsider its precedents. Eventually, the Court did just that.

"Departmentalism" Versus Judicial Supremacy

Is test legislation that challenges existing precedents always legitimate? Some people think so. Most famously, Thomas Jefferson--and later, Abraham Lincoln--took the view that it was always open to elected officials to act on their own understanding of the Constitution, so long as they respected the judgment of the courts in particular cases.

That view was revived in modern times by Ronald Reagan's Attorney General, Edwin Meese, and is at the heart of Stanford Law School Dean Larry Kramer's notion of "departmentalism" in his recent book, The People Themselves. At its core, departmentalism asserts that the Supreme Court is a co-equal branch of government, entitled to have its judgments respected, but not superior to the other branches (or "departments") of government. Champions of departmentalism include politicians and academics across the political spectrum.

The principal difficulty with departmentalism is a practical one. If political actors do not respect judicial rulings beyond the individual cases in which they are issued, they invite endless litigation.

Why? Because each time a political actor insists on his, her, or its view of the Constitution, people affected by the government policy can go to court and have the policy invalidated--and if the stakes are high enough, that is exactly what the people affected will do. The political actors' insistence on a right to defy the courts wastes the resources of the government and the people subject to regulation, and, except in rare cases, ends up succumbing to the supremacy of the courts anyway.

When Departmentalism Becomes Defiance

In addition to its practical difficulties, departmentalism also suffers a kind of guilt by association--for it is historically linked to the ugly campaign of massive resistance launched by Southern white politicians in response to the Supreme Court's 1954 ruling in Brown v. Board of Education invalidating de jure racial segregation in public schools. Over eighty members of Congress signed the 1956 Southern Manifesto denouncing the ruling as "a clear abuse of judicial power."

In one of the most famous incidents of the era, Arkansas Governor Orval Faubus stood in the doorway of a Little Rock school to block the passage of African-American schoolchildren. The recalcitrance of Faubus and others led the Supreme Court to stress in the 1958 case of Cooper v. Aaron--the only decision ever signed by all nine Justices­--that since the early days of the Republic, it has been established "that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system."

Departmentalists do not like this language. They complain that it leaves elected officials essentially no role in expounding the Constitution's meaning. That, they say, is inconsistent with fundamental democratic principles.

The departmentalists have a point, but surely they do themselves no favors by taking aim at Cooper v. Aaron. The language of that case must be understood in its historical context as wholly justifiable hyperbole.

The Uncertain Line Between Test Legislation and Simple Recalcitrance

At what point does a legislature's desire to test the continued vitality of a judicial precedent cross the line into simple recalcitrance? There is no official answer to this question, but at the very least, elected officials ought to have some indication from the Court that it would even consider reversing itself before adopting laws and policies that blatantly violate existing precedent.

That condition was clearly satisfied in the 1930s, when Congress and the states could see in the Justices' opinions, concurrences and dissents a softening of their restrictive view of the legitimate scope of legislation. In contrast, it clearly was not satisfied in the 1950s, when not a single Justice gave any indication of weakening support for the principle of Brown.

Does South Dakota's new abortion law cross the line between test legislation and defiance? It's not entirely clear.

On the one hand, Roe has not gained anything like the widespread acceptance that Brown has. That is why Supreme Court nominees must swear fealty to Brown but can dodge questions about abortion by claiming that the issue may come before the Court. If Roe were completely settled, then no case presenting the possibility of its reexamination could plausibly come before the Court.

On the other hand, the Supreme Court has not given a strong indication of its willingness to reconsider Roe. Indeed, in its most recent abortion ruling--the January decision in Ayotte v. Planned Parenthood of Northern New England -- the Court began its unanimous opinion with the following statement: "We do not revisit our abortion precedents today . . . ."

If the Court was unwilling to revisit those precedents in January, what makes the South Dakota legislature think it would be willing to revisit them now?

One possibility, as I indicated in a prior column, is that the Court's unanimity in Ayotte simply reflected an agreement to temporarily forestall wholesale reconsideration of Roe.

But even if the Ayotte truce does not hold, South Dakota's math appears faulty. Assuming that Chief Justice Roberts and Justice Alito would be willing to overrule Roe (itself a very large assumption), there remain five Justices on record as unwilling to do so: Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer.

To be sure, Justice Kennedy split with these colleagues on the question of so-called "partial-birth" abortion in the 2000 case of Stenberg v. Carhart. Yet despite this disagreement about the outer bounds of the abortion right, Justice Kennedy would undoubtedly stick with his commitment to the core of Roe if faced with a law as restrictive as the one just passed by South Dakota.

Perhaps South Dakota is counting on--or even hoping for--the retirement or death of one or more of the remaining pro-Roe Justices during the time it will likely take for a challenge to its new law to work its way through the judicial system up to the Supreme Court. Although ghoulish to be sure, such calculations would seem to move the new law out of the category of defiance for defiance's sake, and into the category of legitimate test legislation.

Ultimately, the question of whether the South Dakota law serves as a test of the continued vitality of Roe remains for the Court to decide. Lower courts are bound by Supreme Court precedent until overturned by the Supreme Court itself, and so the Justices can simply deny review of the lower court decisions that will, undoubtedly, invalidate the South Dakota law.

One can think, as I do, that the new South Dakota law is unwise. One can also think, as I also do, that it is unconstitutional. But granting all of this, South Dakota still acted within its rights in asking--in the only lawful way open to it--for the Justices to reconsider their abortion jurisprudence.