[Ann] Bartow's theory, then, is that the Supreme Court is simply waiting for Bush to leave office to overturn Roe and throw a wrench into the plans of a new administration, one that looks likely to be Democratic. "They have the votes to take a case now, [what] they're waiting for is a Democratic president and Congress," Bartow told me over the phone. "It would really stall any work they want to do." The Court did just decline to hear three abortion-related cases this session, but has time to accept a direct challenge to Roe later in its term – which either the South Dakota abortion ban or the Colorado personhood amendment, both on the ballot this November, could supply later this year.
Bartow's argument sparked a heated debate in the pro-choice blogosphere. Scott Lemieux, an assistant professor of political science at Hunter College in New York and contributor to the blog Lawyers, Guns and Money, disagrees with Bartow that the Court is "that crudely political," even though he acknowledges that "to some degree, the Supreme Court follows the election returns and it's not a completely apolitical body." Lemieux says that the Court elected to hear Planned Parenthood v. Casey in 1992 just before another high-stakes presidential election. The ruling on Casey upheld the right to an abortion, but established that regulations and restrictions could be placed on that right, as long as it didn't place an "undue burden" on the woman. Kathryn Kolbert, the ACLU attorney who argued the case, specifically tailored her argument to force the justices to address the central holdings of Roe before the 1992 presidential election.
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