Thursday, February 08, 2007

State of the Law: Roe v. Wade

One of the things I love about the law is how fluid it is. It's also one of the most frustrating parts of being an attorney. Just when you think you know an area, it changes. So you have to constantly learn and develop.

A colleague and I finished the first drafts of two white papers for a non-profit that has commissioned papers on each of the 50 states. The question: What would be the state of the law IF the US Supreme Court overturns Roe v. Wade.

There is always the possibility this could happen, given the new make-up of the court, though I doubt it.

We had two states: Vermont and South Dakota. The states could not be more different in their approach to abortion if they tried.

Vermont has an activist supreme court and a legislature that is unwilling to legislate anything in the area of abortion. Check this post for my take on one of the state legislators who kept trying...despite the likelihood (or lack thereof) of success. If Roe v. Wade were overturned tomorrow, nothing would change in Vermont. Hence, NARAL's grade of an A for the state.

South Dakota is a polar opposite. In South Dakota there is all kinds of legislation on the book limiting abortion. Parental notification, informed consent, healthcare providers ability to say no for conscience reasons, etc., are alive and well.

The legislature has even passed legislation intended to become a test case for the Supreme Court. Only problem is instead of suing for injunctive relief, pro-abortion advocates took it to the streets and the legislation was overturned by the people in the 2006 election. Maybe because the law did not contain exceptions for rape and incest...It would be interesting to know. Even with this, NARAL gives the state a F rating.

So, if the Supreme Court reverses Roe v. Wade and returns abortion to the states, we will have a patchwork quilt of policies in place. And the law will continue to grow and change.

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