Ban on Most Abortions Advances in South Dakota
Ban on Most Abortions Advances in South Dakota
By: Monica Davey
Date: February 22, 2006
About the Author: Monica Davey is a reporter for the New York Times specializing in stories related to immigration and law.
In 1973, the Supreme Court ruled in Roe v. Wade that all state laws banning abortion were unconstitutional. Specifically, it ruled that "a State may impose virtually no restriction on the performance of abortions during the first trimester of pregnancy," where the first trimester is the first three months of a pregnancy.
The decision has been intensely controversial. In the years since 1973, most Americans have come to identify themselves as either "pro-choice" or "pro-life." Here quotation marks have been used because the terms themselves are often controversial. For example, many who oppose abortion dispute the view that abortion is a "choice," while many who support abortion dispute the view that only foes of abortion are in favor of "life." Most commonly, "pro-choice" means belief that limiting or banning abortion during the first trimester is unconstitutional and immoral, while "pro-life" means the belief that abortion itself is unconstitutional (despite Roe v. Wade) and immoral. Pro-choicers supportRoe v. Wadeand pro-lifers oppose it.
Political struggle between the pro-life and pro-choice camps has intensified over time. In 2005 and 2006, pro-lifers in South Dakota sought to pass a state law banning nearly all abortions. The law bans abortion even when the pregnancy is a result of rape or incest; it does allow abortion to save the life of the mother. The law makes performing an abortion in South Dakota a Class 5 felony, meaning a crime punishable by a fine of up to $5,000 and a prison term of up to five years. The law does make performing an abortion a crime, not having one.
The Women's Health and Human Life Protection Act, HB 1215, was passed by the South Dakota state legislature in February 2006 (House, 23–12; Senate, 50–18) and was signed into law by Governor Michael Rounds in early March.
PIERRE, S.D., Feb. 22—Setting up South Dakota to become the first state in 14 years to start a direct legal attack on Roe v. Wade, lawmakers voted on Wednesday to outlaw nearly all abortions.
Across the country, abortion rights advocates reacted with outrage and dismay. The Planned Parenthood Federation of America, which runs the sole abortion clinic in South Dakota, said it was bracing to fight the move in court immediately, if the governor signs it.
"This represents a monumental step backward for personal privacy for women," Nancy Keenan, president of Naral Pro-Choice America, said.
Some opponents of abortion rights celebrated what they called a bold and brave move and lauded South Dakota for taking the lead in what they said they hoped would become a series of states to challenge Roe, the 1973 decision that made abortion legal.
The shifting makeup of the United States Supreme Court, the opponents said, offered a crucial opportunity, the first since at least 1992.
"It is a calculated risk, to be sure, but I believe it is a fight worth fighting," State Senator Brock L. Greenfield, a Clark Republican who is also director of the South Dakota Right to Life, told his colleagues in a hushed, packed chamber here.
After more than an hour of fierce and emotional debate, the senators rejected pleas to add exceptions for incest or rape or for the health of the pregnant woman and instead voted, 23 to 12, to outlaw all abortions, except those to save the woman's life.
They also rejected an effort to allow South Dakotans to decide the question in a referendum and an effort to prevent state tax dollars from financing what is certain to be a long and expensive court battle.
To be enacted, the bill, the most sweeping ban approved in any state in more than a decade, requires the signature of Gov. Mike Rounds, a Republican, who opposes abortion.
After overwhelmingly approving the measure this month, the House, too, has to vote on it again because the Senate slightly reworded it, although the intent of the bill was unchanged and the vote there seems unlikely to shift.
Mr. Rounds has said he will not comment on whether he will sign the measure until it reaches his desk. It is likely to arrive there by next week. He has 15 days to make a decision.
In an interview this week, Mr. Rounds said he had doubts about whether now was the time to make a "full frontal attack" on Roe v. Wade, as opposed to pressing for more laws that restrict abortions—setting limits, for instance, on their timing, methods or the requirements for parental notification.
Those restrictions, he said, have immediate effects on preventing abortions in South Dakota.
Mr. Rounds suggested that the two approaches might be possible simultaneously, particularly as a way to keep opponents of abortion rights from splintering over strategy questions. The key, he said, was in "saving lives while at the same time appeasing a segment that says you won't know unless you try the direct frontal attack."
Lawmakers opposed to abortion rights here—and advocates opposed to abortion rights around the country—have been split over timing questions. Some argue that the arrivals of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. on the Supreme Court and speculation that Justice John Paul Stevens might soon retire, made now an ideal time to challenge Roe.
Others, however, have said a challenge should wait, for the arrival of additional justices who might be open to overturning Roe and for a shift in public opinion.
Nancy Northrup, president of the Center for Reproductive Rights, said the South Dakota action—similarly broad bans have recently been proposed in at least five other states—reminded her of a wave of state challenges to Roe in the years just before 1992, when the Supreme Court reaffirmed a core right to abortion in Planned Parenthood v. Casey.
"People have this sense that the court is in flux and is shifting so they want to try to test out how far they can go," Ms. Northrup said. "The answer will be in how the new justices vote."
On Wednesday in the Senate chamber, any division about strategy among opponents of abortion rights seemed to have vanished.
"This state has a right and a duty to step up to the plate," Senator William M. Napoli, Republican of Rapid City, told his colleagues before he voted for the ban.
It passed by a margin larger than many on both sides had predicted.
Opponents, meanwhile, questioned the purpose of such a law and the potential costs of the litigation, and they recited harrowing stories of women who had become pregnant, for example, after having been raped.
"What can we as a state possibly gain by passing a bill that is unconstitutional?" asked Senator Clarence Kooistra, Republican of Garretson, who added that he represented the "silent majority" of South Dakotans who would not approve outlawing abortion nearly entirely.
Leaders of a movement against abortion rights in this state said they had raised $1 million in donations to help pay for the legal fight ahead.
"I didn't want money to be the reason people would-n't vote for this bill," said Leslee J. Unruh, founder and president of the Abstinence Clearinghouse in Sioux Falls, who said she could not disclose the identities of those who had pledged money. "We're concerned with the 800 children aborted here every year."
After the vote, Kate Looby, state director of Planned Parenthood, left the statehouse promising to press Mr. Rounds to veto the bill.
"I'm very hopeful that he will be a voice of reason in this process and will choose the health and safety of the women of South Dakota over the political tool that this bill was designed to be," Ms. Looby said.
Failing that, she said, Planned Parenthood will sue, and it expects that a court will block the law from going into effect, while the case makes its way through the courts, a process that could take years.
"It scares me," Ms. Looby said, "to think that it may in fact be the reality for my daughter's generation."
The 2006 South Dakota abortion law was designed to be incompatible with Roe v. Wade, forcing a reconsideration of abortion by the Supreme Court. The law will probably be challenged in a federal district court by pro-choice groups; whichever side loses the case would appeal, taking it to a federal appellate (appeals) court, whence it would be appealed again to the Supreme Court. The Supreme Court's decision could be overridden only by a constitutional amendment.
Many pro-lifers hope that with the recent appointment of two conservative, anti-abortion judges by President George W. Bush (John Roberts and Samuel Alito), the Supreme Court would overturn Roe v. Wade, allowing state legislatures to ban abortion. If this were to happen, some states would ban abortion and some would not. It is also possible that the Court could rule more broadly, not only allowing states to ban abortion but declaring abortion unconstitutional.
Alternatively, the law might be overturned by a South Dakota court or retracted by referendum before being challenged in federal court. In March 2006, a pro-choice group including doctors, political leaders, and ministers, the South Dakota Campaign for Healthy Families, began collecting signatures to force a referendum on the law. As of 2006, similar measures were being advocated in at least five other states, making reconsideration of Roe v. Wade by the Supreme Court likely at some time in the following five to ten years.
Some conservative strategists have been concerned that the head-on South Dakota approach to overturning Roe v. Wade could backfire. They pointed out that the South Dakota law's refusal to exempt cases of rape or incest—requiring, for example, a twelve-year-old who becomes pregnant after being raped by her father to carry the pregnancy to term—might appear too extreme to voters. When polled, about twice as many Americans say that they support the basic abortion right defined by Roe v. Wade, though also saying they approve of some restrictions, such as notification of parents by minors seeking abortions. (As of 2006, thirty-four U.S. states had laws requiring such notification.) First-trimester abortion is an extremely popular procedure: about half of all U.S. pregnancies are unintended, and about 40 percent of those pregnancies are ended by abortion (about 1.2 million abortions per year). And despite the conservative tilt of the Supreme Court, legal experts agreed that it was probable, based on voting records and public statements, that five of the nine justices would uphold Roe v. Wade. In short, some conservative politicians and strategists feared that if the South Dakota law made pro-life forces appear extremist and led to yet another pro-choice precedent at the level of the Supreme Court, it would do the anti-abortion cause more harm than good. Other conservatives disagreed, supporting the law as not only right but timely. Pro-choice organizations were unanimous in opposing the South Dakota bill.
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