State Law After Roe

Following up on last night's post about the South Dakota and Mississippi abortion bans, Josh Goodman of Governing magazine's '13th Floor' blog sent me a link to his analysis of state abortion law in a post-Roe America. Relying heavily on data from NARAL, Goodman concludes that "23 states would be likely to ban most abortions, 20 states would keep abortion legal... and 7 states would be battlegrounds...."

While it's a pretty solid piece of research, I'm surprised at some of the conclusions he reaches. For example, I have trouble accepting that Rhode Island would be likely to ban abortion, while Kansas would not. Since he uses Kansas as an example, I'll let him speak for himself on his methodology.

I took into account natural legislative inertia -- it's much easier to maintain the legal status quo than it is to change it. Look at Kansas, where there is currently no abortion ban on the books. NARAL lists the Kansas House as anti-choice, the Senate as mixed-choice and Governor Kathleen Sebelius as pro-choice. It would be difficult to pass an abortion ban in Kansas because Sebelius and the Senate could block it.

I would suggest that he's overlooking the social impact of an upending of Roe v. Wade. It's not as if such an event would occur in a vacuum where the "natural legislative inertia" would remain intact. Quite to the contrary, the end of Roe would likely bring a blizzard of activism on both sides of the issue. And in Kansas, even though I understand Goodman's take, I think the ensuing anti-choice uproar would push the state to join the ranks of abortion outlawing states.

Ultimately, with few exceptions, like swapping Kansas and Tennessee into the ban category, I'd say that Goodman's analysis sounds about right, at least numbers-wise (23 ban, 20 don't ban, and 7 on the fence). That means that if Roe is overturned (something that won't happen over night), the nation will be split about 50/50 when it comes to outlawing choice, with a number of states imposing varying levels of restriction. Like I said earlier, this is no longer an issue that exists merely in the abstract.

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Outlawing Choice No Longer Exists In The Abstract

As you've undoubtedly already heard, Governor Mike Rounds has signed into law a bill banning abortion in the state of South Dakota. While there is an exception in the bill if the life of the mother is at risk, there are no exceptions for cases of rape, incest, or situations where the health of the mother is compromised. The South Dakota ban is likely to be followed shortly by a similar ban in Mississippi, which does allow exceptions for cases of rape and incest. Right now, each state only has one abortion clinic.

Now, neither of these bills is really going to outlaw abortion in either state. Yet. Rounds openly admits that the South Dakota ban will be bogged down in the courts for years to come. Both (again, as you've undoubtedly already heard) are designed to challenge the precedent of Roe v Wade in the Supreme Court, where their backers expect to find a receptive audience with John Roberts and Samuel Alito. This is the moment that every pro-choice voter who has ever voted for a Republican never thought would come. They voted for Republican tax cuts, confident that the social agenda was just some sort of ruse to win over the Falwell crowd. For example, in September of 2004, polling indicated that in the crucial state of Ohio, support for Bush among self-identified pro-choice voters was much higher than support for Kerry among self-identified pro-life voters. This is a critical point. Throughout the pro-choice electorate, there has long been this assumption that the woman's right to choose is not seriously threatened. It has always been an incredibly stupid and undisciplined thing to assume. Elected Republicans haven't been pandering to the Falwell crowd. They are the Falwell crowd.

And this fight isn't over. It doesn't end with Bush naming Roberts and Alito to the Supreme Court. If not Bush, the next President will name a replacement to John Paul Stevens, whose death Republicans are gleefully hoping for because it will likely push the court decisively one way or the other (or at least more than it has already been pushed). A quick review of Republicans likely to run for their party's nomination in 2008 shows that ignoring choice at the ballot box is no longer an option. John McCain, George Allen, and Mitt Romney have all promised that, like Rounds, they would sign the South Dakota ban, as has darkhorse candidate Mike Huckabee.

Advocates for choice have been warning voters about this for years. Obviously, after a while, those warnings sounded alarmist and unrealistic to some. Unfortunately, they were neither. So here we are. This issue no longer exists in the abstract.

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SCOTUS And The Clean Water Act

A great deal of attention is being paid to the fact that the Supreme Court is set to hear a case regarding the constitutionality of a ban on some abortions. It's understandable, as it will be the first high-profile test of Bush's new Supreme Court on the question of choice. However, having already resigned myself to the idea that the Roberts court will likely chip away at the right to choose, I think there's another case that will also tell us quite a bit about the direction of the court.

It's long been a tenant of many on the judicial right that the federal government does not legitimately have the authority to regulate the environment. So I'm particularly interested to see how the court will rule on these challenges to the Clean Water Act. In both cases, Carabell v. U.S. Army Corps of Engineers and Rapanos v. U.S., developers (of condominiums and a shopping mall, respectively) are claiming that the Clean Water Act cannot be applied to wetlands that feed tributaries of the "navigable waters" expressly protected by the law. The rightist talking point on this is that the Clean Water Act can't be applied to "every wet spot in the nation." Unsurprisingly, that language comes directly from the Federalist Society. But as Jim Murphy, of the National Wildlife Federation says, the argument is akin to "saying that you cannot cut down a tree, but are free to poison its roots."

As of yesterday, with Roberts and Scalia vigorously mocking the scope of the Clean Water Act, Alito had only asked one question. It fit in with the line of questioning coming from his colleagues on the right, questioning what would constitute a tributary. Now, one probably can't glean too much based on one question. But if Alito's record tells us anything, it's that he's likely to side with the deregulators on this issue.

A sure sign of the importance of Alito and Roberts is that one anti-regulation brief, by the conservative Washington Legal Foundation, pointedly cites appeals court writings by both justices that support a narrow view of the commerce clause.

The brief reminds Alito and the rest of the Court of his 1996 dissent as a 3rd Circuit judge in United States v. Rybar, the so-called machine gun case, that Alito was repeatedly quizzed about at his hearing. Alito argued that Congress did not have authority to ban possession of machine guns, and the foundation hopes he will rule the same way on Clean Water Act coverage.

It's worth noting that Sandra Day O'Connor also skewed slightly right on the Clean Water Act. In 2000, in Friends of the Earth v. Laidlaw Environmental Services she agreed citizens could sue for enforcement of the Clean Water Act. But then in 2001, in SWANN v. U.S. Army Corps of Engineers she sided with the majority in an opinion that limited the act. In both cases, Scalia and Thomas lined up against the Clean Water Act. I'm expecting the worst here from Alito and the increasingly rightist Supreme Court. Here's hoping I'm wrong.

Why Senator Landrieu isn't onboard with a filibuster of Alito?

Senator Landrieu has said she's against a filibuster of Alito. Taken from her senate website ( .cfm):

Because we have such a full plate of pressing issues before Congress, a filibuster at this time would be, in my view, very counterproductive. It is imperative that we remain focused on creating the tools New Orleans, Louisiana and the Gulf Coast will need to rebuild. This includes passing the Baker bill and allowing our state to keep its fair share of offshore energy revenues. We simply cannot afford to bring the Senate to a halt at a time when we need its action the most. If called to vote for cloture on Judge Alito's nomination, I will vote yes.

The Washington Post has an article entitled "New Orleans May Lose 80 Percent of Blacks" that says a lot about why. She's trying to save her bacon.

( tent/article/2006/01/27/AR2006012700678. html)

New Orleans May Lose 80 Percent of Blacks

The city of New Orleans could lose up to 80 percent of its black population if people displaced by Hurricane Katrina are not able to return to damaged neighborhoods, according to an analysis by a Brown University sociologist.

Professor John R. Logan, in findings released Thursday, determined that if the city's returning population was limited to neighborhoods undamaged by Katrina, half of the white population would not return and 80 percent of the black population would not return.

"There's very good reason for people to be concerned that the future New Orleans will not be a place for the people who used to live there, that there won't be room in New Orleans for large segments of the population that used to call it home," said Logan, who studies urban areas.

The study used maps from the Federal Emergency Management Agency that detailed flood and wind damage and compared them to data from the 2000 U.S. Census to determine who and what areas were affected.

It found the storm-damaged areas had been 75 percent black, compared to 46 percent black in undamaged areas of the city. It also found that 29 percent of the households in damaged areas lived below the poverty line, compared with 24 percent of households in undamaged areas.

More than half of those who lived in the city's damaged neighborhoods were renters, the analysis found.

"The odds of living in a damaged area were clearly much greater for blacks, renters and poor people," the study said. "In these respects the most vulnerable residents turned out also to be at greatest risk."

Elliott Stonecipher, a demographer and political analyst based in Shreveport, La., said the analysis gets to the heart of the debate over how to rebuild New Orleans. Racial tensions have been high with some worried that those in charge of the rebuilding will push black residents out of the city.

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What Would It Take To Filibuster?

Well, there might be some good news on the Alito front: Senators Kennedy and Kerry are seriously considering filibustering the Alito nomination. Inspired by dadahead's argument that the Democratic 'strategy' really doesn't seem any different than if the Democrats were intentionally trying to lose to the Republicans on every issue, I want to ask a simple question:

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