Friday, February 10, 2006

WorldNetDaily: State lawmakers defy Roe ruling

The South Dakota House of Representatives has signaled their defiance by passing a law making abortion in that State a felony, punishable by five years in prison. The bill now heads to the State Senate. The plan is simple: deliberately provoke a federal court challenge and start the case marching up the chain of jurisdiction to the Supreme Court.

Why now, when a possible anti-Roe bloc consists of only four reliables (Roberts, Alito, Scalia, and Thomas) and not five? The article doesn't say. Here's my speculation:

Constitutional cases take much longer than you can imagine to wend their way up the appellate chain. The steps are these:

  1. File a lawsuit in federal District Court.
  2. Try the case in that court.
  3. File the appeal and/or the response. (That a District judge would actually find for the legislature is extremely unlikely, so the State will be filing an appeal, not a response.)
  4. Write briefs and then give oral arguments to a three-judge panel in the circuit having jurisdiction.
  5. Get the inevitable affirmation of the likely District-level strike-down.
  6. (Optional) Go through that whole process again by asking the entire Circuit Court of Appeals to hear the appeal en banc.
  7. Write the petition for a writ of certiorari to the Supreme Court--in essence, asking the Court to change its rule.
Now even getting to that point could take years--maybe enough years for Bush to make one more judicial appointment. Hooo, boy, the stakes in the Senate couldn't be higher! I can already hear Senator Barbara Boxer (D-CA), she who once said that a baby is not a person until the mother brings it home, RANTING AND RAVING AND SCREAMING AT THE TOP OF HER LUNGS on the floor of the Senate when Bush's next Supreme Court pick comes up. And before then! Senator Ted (hiccup) Kennedy will be pestering Chairman Arlen Specter at Judiciary for another executive session. (Apologies to Sean Hannity.) Will Arlen bang the gavel on Kennedy's fingers, as he came close to doing this last time? Stay tuned! Better fashion some special gavels for the Judiciary Committee and Senate floor sessions. Chips are gonna fly from the dais in each venue!

Now back to that appeals process: So a cert petition goes to the Supremes, who take it up in Friday morning session. What will they do? Four Justices can vote to grant cert--because the Court never lets a case stand without comment without at least six Justices voting not to waste the Court's time with it. The current Court will likely grant cert--but we'll need one more Justice to retire in order to get what will likely be a five-to-four vote. And the most the Court will likely do is to say that from now on, abortion will be a State matter and only a State matter, unless a particular federal law deals with such circumstances as "interstate transportation in aid of circumvention of parental consent."

Right about now, I think a bunch of people are e-mailing private messages to the chambers of Mr. Justice John Paul Stevens, containing links to all manner of patent medicines touted for helping you live longer. I wonder: is it lawful willfully to direct spam to the e-chambers of a Justice of the Supreme Court?

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