South Dakota governor 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, the idea that women who choose to obtain an abortion must be acting irrationally and need states to coerce them to reconsider. And the 3-day waiting period (rather than the more typical 24-hour one) imposes a particular burden on poor women and women who have to travel long distances (a particular problem in a rural state in which 98% of counties lack an abortion provider.)
There is an argument that the provision is unconstitutional — the waiting period upheld in 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.
…more from Pema Levy.