South Dakota apparently set off a trend in state legislatures with its comprehensive abortion ban, signed into law yesterday by Governor Mike Rounds. Since Roe, no legislature has dared to so openly flout the Supreme Court's dictate on abortion rights. Now, however, states have queued up similar legislation in an effort to follow South Dakota into the battle against judicial activism:

Leaders on each side of the abortion debate said South Dakota's law had stirred new support and fervor for their causes. Abortion rights advocates reported a flood of donations, volunteers and membership requests since the abortion bill began drawing national attention last month.

Opponents said they, too, had had a flood of calls, including numerous donations to a defense fund to fight what is expected to be expensive litigation on behalf of South Dakota.

Already, the state's move seems to have emboldened legislators opposed to abortion elsewhere. For months, similar bills had been proposed in the statehouses of at least a half-dozen states, including Ohio, Georgia and Tennessee, but some efforts have gained steam in the weeks since the South Dakota Legislature overwhelmingly passed its ban.

"Legislators feel that now is the time to wrestle back their authority from the courts," said Tony Perkins, president of the Family Research Council, based in Washington. "The courts have overstepped their bounds on issues like gay marriage, and the legislators are speaking up."

It does seem that the Massachussetts Supreme Court decision to force the state legislature into approving gay marriage has become the final straw in a decades-long battle between the judiciary and the elected representatives of the people. No one these days defends the basic legal framework of Roe, with even Justice Ruth Ginsburg noting its legal flaws. The only argument is an ends-justifying-the-means cri de coeur from abortion advocates, predicting massive deaths and injuries to women if legislatures ban abortions -- despite the fact that these back-alley deaths never amounted to any significant number previous to Roe.

Without a doubt, the Supreme Court will not be able to avoid the reconsideration of Roe, as it has in the past. Legislatures and Congress have nibbled at the edges for thirty-three years, allowing the court to mostly avoid the direct question of judicial overstepping in 1973. These legislatures are betting that a direct challenge will not allow the court to avoid the controversy any longer. However, it remains to be seen whether this court will actually reverse Roe. Even the most optimistic votecounters predict no better than a 5-4 split, and the terms of the South Dakota law -- which makes no exception for rape or incest -- could be enough to tip even this court against the legislatures.

The anti-Roe activists are playing with fire; a loss at the Supreme Court could reinforce the precedent even further. However, it is clear that this battle will have to be fought at some point, and they're betting that this court will at least be open to the argument that Roe has no basis in law or constitution and should be voided. Let's hope the court can at least agree on that much.

UPDATE: La Shawn Barber pleads for a rational discussion on the issue.

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