No end in sight for abortion debate

What most people want to know about South Dakota's new abortion ban is whether it has any chance of being upheld by the Supreme Court, thus overturning Roe vs. Wade.

The prevailing wisdom is that it doesn't.

Although conservative Samuel Alito replaced Roe supporter Sandra Day O'Connor on the court this year, that does not shift the makeup of the court to the point where anti-abortion advocates can expect a majority in their favor.

Justices Ginsburg, Souter, Kennedy, Breyer and Stevens all appear to be votes in favor of maintaining the abortion rights proclaimed in Roe. That would result in a slim 5-4 majority rejecting South Dakota's law and preserving Roe.

The only threat to that majority would be Justice Kennedy, who flip-flopped on the issue once before. In the 1992 case known as Planned Parenthood vs. Casey, Kennedy originally sided with four other justices in favor of overturning Roe, but at the last minute switched sides and thus kept Roe essentially intact. In a later decision, however, Kennedy supported a ban on partial-birth abortion, showing that he does support some restrictions and that he is an unpredictable vote.

The problem for anti-abortion forces is that South Dakota's law goes beyond what even many conservatives find acceptable in that it bans all abortions except to save the life of the mother. Many people who oppose abortion still find a valid reason to allow abortions in the cases of rape and incest. South Dakota's harsh law may thus be rejected by the court, therefore, while another ban that is not so extreme may later be used to overturn Roe vs. Wade.

In the meantime, the recent changes in the court's membership suggest that the federal law banning partial-birth abortion may be upheld. That is not unexpected, since public opinion seems to be preponderantly opposed to the procedure.

The fact of the matter is that medical technology and ethics have both changed substantially since Roe vs. Wade was first decided in 1972. As a result, much of Roe's determination about "viability" of a fetus is outdated. This almost certainly guarantees that the court will revisit some of the key issues of abortion in a future case.

And because the court seems to be split closely on the fundamental constitutional issues at hand, we may not have any resolution for a long time to come, depending on how the membership on the court shifts due to retirements and death and which way new members vote.