Release date: 6-Mar-06
Contact: Elaine Justice at 404-727-0643 or elaine.justice@emory.edu

S. Dakota Anti-abortion Law Unlikely to Stand, Says Emory's Schapiro

Constitutional law expert Robert Schapiro of Emory Law School says the South Dakota legislature and governor "apparently feel emboldened" by recent U.S. Supreme Court appointments in passing what he says is clearly an unconstitutional law outlawing almost all abortions. He says legislative efforts in other states to place increased restrictions on the woman's right to choose have a much greater chance of being upheld in the courts.

Schapiro says:

"Under Article VI of the U.S. Constitution, all governors and state legislators must take an oath to support the Constitution of the United States. Here, the South Dakota legislature has passed and the governor has signed legislation that indisputably violates the Constitution, as that document has been interpreted by the U.S. Supreme Court.

"The legislature and governor apparently feel emboldened by the recent appointments of Chief Justice John Roberts and Associate Justice Samuel Alito. Nevertheless, five of the nine current Justices on the Supreme Court have declared their adherence to the precedent of Roe v. Wade, which holds that a woman's liberty to choose to end her pregnancy before viability is protected by the Fourteenth Amendment to the United States Constitution. This core holding of Roe was re-affirmed in the 1992 decision of Planned Parenthood v. Casey. It appears unlikely that any of these five will vote to overturn the Roe/Casey precedent.

"Legislative efforts in other states to place increased restrictions on the woman's right to choose an abortion have a much greater chance of being upheld in the courts.

"Perhaps the South Dakota legislature wishes to challenge the role of the U.S. Supreme Court in providing the authoritative construction of the Constitution. Alternatively, perhaps the legislature wishes to make a symbolic protest against the Constitution as currently interpreted. If it becomes common for states to enact laws that clearly violate the Constitution, as interpreted by the Supreme Court, the effect on our current constitutional system would be quite disruptive."

Reach Schapiro at 404-727-1103 or rschapir@law.emory.edu

Emory University is known for its demanding academics, outstanding undergraduate college of arts and sciences, highly ranked professional schools and state-of-the-art research facilities. For nearly two decades Emory has been named one of the country's top 25 national universities by U.S. News & World Report. In addition to its nine schools, the university encompasses The Carter Center, Yerkes National Primate Research Center and Emory Healthcare, the state's largest and most comprehensive health care system.

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