Constitutional Nose Thumbing

Last month I chastised a state lawmaker for voting in favor of a law of questionable constitutionality under the theory of "let the courts settle it." I still think that voting in such a way is an abandonment of the legislator's oath to uphold the Constitution. So what of South Dakota's recent anti-abortion law, that runs headlong into Roe v. Wade? Are the mouthbreathers in the Black Hills on any better footing? Michael Dorf over at FindLaw says yes. He makes a fairly convincing case that the only way for anyone to legitimately challenge Roe (or any other constitutional status quo) is to act in a way that forces the courts to deal with the issue. I'm not completely convinced, but it's an interesting theory.