Following up on my recent piece about the watering down of reproductive rights in Planned Parenthood v. Casey, Amanda Marcotte has an excellent piece about new abortion regulations in South Dakota. Essentially, the combination of a draconian 72-hour waiting period and a mandatory counseling requirement will make it nearly impossible to obtain abortions in the state. In addition to the obvious burden it places on women who don't live near South Dakota's single abortion provider, the waiting period is particularly burdensome because no doctor who performs abortions lives in South Dakota full-time. And the mandatory counseling provision -- which is especially odious because it must be obtained from anti-abortion propagandists at "crisis pregnancy centers" -- creates a particular problem since nobody is willing to provide the counseling.
In theory, these regulations should be unconstitutional under existing law -- if regulations that make it essentially impossible to obtain abortions and have no purpose other than to make it essentially impossible to obtain abortions don't constitute an "undue burden," what would? But Anthony Kennedy, the deciding vote, has made it pretty clear that he will give the standard the narrowest possible reading, and so it's all too likely that these provisions will be upheld. The problem with "minimalist" standards is that they're only as good as the judges applying them, and Kennedy has made clear that while he's willing to live with Roe, he's fundamentally hostile to a woman's right to choose.
