South Dakota Passes Draconian Waiting-Period Regulation

As the Prospect's Pema Levy notes below, today South Dakota Gov. Dennis Daugaard signed into law a bill requiring women to wait 72 hours before obtaining an abortion. Like all "waiting period" regulations, the law is based on the inherently sexist assumptions that Anthony Kennedy made explicit in his infamous Carhart II opinion: namely, that women who choose to have an abortion must be acting irrationally and need to be coerced into reconsidering.

There is an argument that the provision is unconstitutional -- the waiting period upheld in Planned Parenthood v. Casey was only 24 hours, and it's possible to argue that the 72-hour waiting period constitutes an "undue burden." But if it gets to the Supreme Court, I think it's overwhelmingly likely that it would be upheld. The Court's four most conservative justices would almost certainly uphold an outright ban, and while Kennedy was part of the Casey plurality, he hasn't found an abortion regulation unconstitutional since. Regrettably, the Supreme Court would probably continue to facilitate the pincer movement against abortion access.

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