I'm not going to say much about the merits other than I think it's terrible from a policy standpoint considering the lack of rape or incest exceptions. It's also ridiculous that doctors will be criminally liable for performing the procedure but not women who receive it. You want to talk about infantalising women's choices regarding reproduction...
I wouldn't argue that abortion is 'good', but I will say that treating it as the cause rather than a symptom of larger social issues is incredibly myopic. I find the agenda of anti-choice plus "abstinence only" education both morally imperialistic (I can respect if your religion says no premarital sex and no contrception, but mine doesn't) and completely divorced from reality. Plus, I tend to agree with the guys at LGM<>worded) but if you want to play that particular brand of poker, I see your Roe and raise you a Bush v. Gore and Hamdi.
My intuition is that Jack Balkin is right as to how this will play out:
South Dakota's new abortion legislation has not yet been signed by the Governor. If it becomes law, it will not lead to a challenge to Roe v. Wade or Casey at the Supreme Court. Because the law bans almost all abortions, it will be immediately challenged in a declaratory judgment action, and a preliminary injunction will issue. That injunction will be upheld by the 8th Circuit, and the Supreme Court will deny certiorari. And that will be the end of the matter.But then someone, somewhere will pass a similar law, and the next ten years of jurisprudence will be straight from a Verizon Wireless ad - "Unconstitutional? How bout now? How bout now?
How about instead of passing a law that will never take effect, and if it does will likely have some particularly nasty effects on certain demographics, take steps to reduce the demand for abortion? Reality-based sex-ed; contraception for those who would choose to use it; programs which make raising children less burdensome to poorer single women, and perhaps a more efficient surrogacy and/or adoption market.*
Alternatively, make a good faith effort to comply with existing law, and perhaps try to push around the edges. (Tactically, this makes more sense anyway.) But this law just smacks of "nullification," which I would have hoped was discredited in the '60s at the very latest.
*It's somewhat ironic to me that the great champions of 'free-markets' always try to alter behavior from the supply side by declaring something illegal and pretending that will make it cease to exist. If history shows us anything it is that demand will always create supply. And illegal markets have enforcement mechanisms which are slightly more unsavory than those that are legal. See, e.g. prohibition.
I hadn't realised how long it has been since I blawged here until I got blogrolled as a 'blawg' (thanks, btw, Angelica. Always warms my little bloggy heart...as Carly Simon says, I'm so vane...) Partially it's because I feel somewhat constrained by my job, but mostly that some of the big 'legal' issues have been beaten to death by those who are both better bloggers and smarter lawyers than myslef, but I'll try to do it a little more often.