March 9, 2006
South Dakota lawmakers this week approved the nation's most rigid abortion law, virtually banning abortion in the state. But according to Colorado Law Professor Richard Collins, the South Dakota abortion statute most likely will be rejected in the lower courts because it is similar to the Texas law that was overturned in Roe vs. Wade. South Dakota law most likely was passed in an attempt to challenge Roe vs. Wade, said Collins. "The South Dakota law is nearly identical to the Texas law overturned in Roe vs. Wade," he said. "Therefore, as its sponsors intended, it is simply a vehicle to try to have Roe overruled." Collins is the director of the University of Colorado Byron White Center for the Study of Constitutional Law. A number of possible legal challenges lie ahead for the new law, he said, described below: o "Opponents of the law may try to force a statewide vote to overturn it. Were that to succeed, of course, the matter would end. However, the vote in the South Dakota Legislature suggests that such a vote would fail and opponents may not even try to overturn it." o "Any court challenge must begin in the lower courts. If they follow Roe and overturn the law, the question would be whether the U.S. Supreme Court would vote to review. It takes four votes. Probably two (votes) would have to come from the new justices: Samuel Alito and Chief Justice John Roberts." o "If the Supreme Court does review, which would be two or three years from now, there still appears to be at least five votes to sustain Roe as modified by the Casey decision in the early 1990s. The case would reveal the views of the two new justices, and if there is another vacancy on the U.S. Supreme Court in the meantime, another Bush appointment could change the outcome of the vote." CU law professors Robert Nagel, (303) 492-8428, Hal Bruff, (303) 735-3536 and Philip Weiser, (303) 735-2733, also are available to comment on the South Dakota abortion law and U.S. constitutional law. Collins can be reached at (303) 492-5493, or call Dirk Martin in the CU-Boulder Office of News Services at (303) 492-3112.