S. Dakota Abortion Law Aims to be Test Case on Roe v. Wade

By Jeralyn, Section Legislation
Posted on Sun Sep 21, 2008 at 11:39:22 AM EST
Tags: abortion (all tags)

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South Dakota, which already has a very strict law on abortion, has an even stricter one on the ballot in November, that would ban abortion in all cases except rape, incest and (narrow) instances of necessity to protect the life or health of the woman.

First, the current law:

The legislature passed a law requiring doctors to tell women that an abortion would "terminate the life of a whole, separate, unique living human being." Each woman must be told that abortion increases the risk of "suicide ideation and suicide," a medically disputed assertion, and must be offered the chance to view a sonogram. A 24-hour waiting period is required.

[More...]

Access is a problem with only one clinic in the state. In 2006, a more strict bill was rejected by voters.

But, the radical right regrouped and re-tooled the proposed ban and it's on the ballot in November as "Initiated Measure 11" which would ban abortion "except in cases of rape, incest and a narrow interpretation of the health and life of the woman."

The purpose of the group behind it, Vote Yes for Life: to provide the case that will overturn Roe v. Wade.

One pro-choice doctor says:

"If there's a risk of a Class 4 felony if I don't meet the ambiguous standard of 'serious risk of substantial and irreversible impairment of a major bodily organ or system,' there's no way I would consider doing an abortion for health reasons," [Dr.]Buehner said. "This represents incredible government interference in the practice of medicine."

Then, there's the Lampstand Project, a church group which has organized to convince women not to have abortions and again, produce the case that will overturn Roe v. Wade:

[Rev.] Hickey says he believes South Dakota has been chosen by God to challenge Roe v. Wade. At a time when the United States allows "the shedding of innocent blood," Hickey said in an interview in his office at Church at the Gate, "He is giving the nation a window of opportunity to address this. He's picked the state that can pull it off."

They have a list of 35 ways for members to support the November Initiative.

"[A] key component of the Vote Yes effort is the campaign trail testimony of women who regret their abortions and want to stop others from having them. The 'candidates' of this particular initiative are the women who have been harmed, those who feel they had a right to have a relationship with her child," said Unruh, who had an abortion. "The people of South Dakota are standing up and giving those babies a voice."

By the time this law, should it or one like it pass in another state, gets to the Supreme Court, we will have more than one new justice on the court.

It's this simple: Voting for Obama/Biden makes it less likely these new justices will overturn Roe v. Wade, while voting for McCain/Palin virtually guarantees new justices will vote to overturn it.

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S. Dakota Abortion Law Aims to be Test Case on Roe v. Wade | 20 comments (20 topical)

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I've never understood (5.00 / 1) (#5)
by Jeralyn on Sun Sep 21, 2008 at 12:54:13 PM EST

if a life is a life, how they can support the death penalty. All lives are not equal to them if they can support state-sanctioned murder.

Consistency (none / 0) (#6)
by outsider on Sun Sep 21, 2008 at 01:06:02 PM EST

Well, I don't find any inconsistency here. One can perfectly coherently believe, I think, that all human organisms have a right to life unless they forfeit that right by perpetrating a terrible crime. A believer in the death penalty who opposes abortion could then say that what is so terrible about abortion is precisely that the victim has done nothing to forfeit its right to life.

Of course, I disagree with this view: I support abortion rights, and oppose the death penalty. But the contrary view needn't be incoherent, is my point.

On a slightly different, though not off-topic note, I was annoyed by this, on multiple counts, even as a Brit. I am not a fan of Justin Webb. But this piece is particularly bad: in arguing that, in effect, it does not matter who wins, he completely overlooks the importance of the next few years for the composition of the Supreme Court.


Abortion opponents (5.00 / 1) (#8)
by tres on Sun Sep 21, 2008 at 01:22:47 PM EST

tend to claim though that we don't have a right to end a "life", normally based upon a religious view of the world. If this is the case it is inconsistent because in the consistent pro-life view, people do not have the right to decide when to end a life, abortion, death penalty and assisted suicide all apply. The decisions are left up to the purview of God and God alone. Therefore someone cannot act in such a way to end their own life by suicide or crime.


Sure. (none / 0) (#10)
by outsider on Sun Sep 21, 2008 at 01:39:14 PM EST

I agree with this statement. But I only said that someone who is pro-life and pro-death penalty is not necessarily contradicting him/herself. Undoubtedly some people, if they believe what you have relayed, do argue incoherently. But others need not be. As to religious views, the argument I suggested is not necessarily theological. But there are some pretty bloodthirsty passages in the Old Testament, as we know. Someone might have religious views that allow the death penalty (an eye for an eye, etc.). This person could then make the argument I suggested.


: Yes it is inconsistent. (none / 0) (#14)
by Molly Bloom on Sun Sep 21, 2008 at 06:09:24 PM EST

Either you are pro life or you are not.
A person who is pro death penalty and anti-abortion is exactly that - pro death penalty and anti-abortion - they are not "pro life". Words have meaning. You are giving a different meaning to the phrase "pro life" than that commonly used. Sometimes pro life would be more accurate and ANTI-ABORTION would be even more accurate.

So much for that argument (none / 0) (#1)
by blogtopus on Sun Sep 21, 2008 at 11:44:22 AM EST

This is where we see if the Supreme court is in danger or already over the cliff side (if it gets that far)

By the time (none / 0) (#2)
by Jeralyn on Sun Sep 21, 2008 at 11:48:45 AM EST

this law, should it or one like it pass in another state, gets to the Supreme Court, we will have more than one new justice on the court.

Voting for Obama/Biden makes it less likely the new justices will over turn Roe v. Wade. Voting for McCain/Palin virtually guarantees new justices who will vote to overturn it.

: What's Wrong with South Dakota? (none / 0) (#15)
by litigatormom on Sun Sep 21, 2008 at 06:45:46 PM EST

I didn't know that it had been "chosen by God" to oppress women.
How is any statute that mandatesthe precise "advice" that a doctor is supposed to give a patient, when the "advice" is grounded in religion rather than in science, medicine or psychiatry, consistent with the First Amendment? How is legislation that is "mandated by God" consistent with the First Amendment?

: With due respect to you Jeralyn (none / 0) (#18)
by World Citizen on Sun Sep 21, 2008 at 08:48:44 PM EST

What would be the result if Roe V Wade were overturned? There would be a political whirlwind, and voters would be forced to confront the issue head on. The political parties could no longer use this issue to hold the electorate hostage.
The two-thirds or so of the electorate that defines themselves as pro-choice would have to crystalize the real meaning of the phrase to themselves. The pro-lifers would have to do the same. The issue would be settled through the political process, and most likely at the national level.
Would abortion rights be curbed in some areas? Most definitely. But the upside is that there would be a consensus reached on the subject. Perhaps those rights would be made constitutional. The reason we don't know what the result would be is because that political process was cut off 35 years ago.
Maybe I'm just super-optimistic, but I don't think the overturning of Roe v Wade would be entirely bad, and it certainly would be surmountable.

: ha (none / 0) (#19)
by connecticut yankee on Sun Sep 21, 2008 at 09:38:53 PM EST

Anything they don't like is "activist" while decisions they do like are "strict constructionism".

Scary Politicians (none / 0) (#3)
by glanton on Sun Sep 21, 2008 at 12:23:45 PM EST

They are in the decided minority on the abortion rights issue but they do not care. They are empowered by the fact that more pro-criminalization types are single issue voters. Comment boards here have shown us that a great many people who favor abortion rights simply do not prioritize it to the extent of the Dobsonians.

The GOP has a definitively radical position on abortion rights but the Media blacks it out except in brief soundbites that get swept away by more pressing matters like lipstick and did you know John McCain was a POW. Just like the GOP has radical positions on wanting to start war with Iran and on pushing for a crash course with Russia and on continuing to deregulate and privatize everything. But still we legitimize this ever-radicalizing Party, take it seriously, represent its ideological leaders as reasonable human beings on television.

Once again it looks like, despite all the havoc it has already wreaked with this Republic, the GOP will get its pound of Constitutional Flesh. And then some.

Only we the voters can stop them, and to say the least. We aren't looking very bright at the moment.

Never understood the exceptions (none / 0) (#4)
by Nevart on Sun Sep 21, 2008 at 12:36:42 PM EST

I have never understood how abortion opponents -- many of them -- are willing to allow exceptions in the case of rape, incest, life of the mother, etc. If a fetus is a human being that can't be harmed, as they argue, what difference does it make if its father was a rapist? How can you kill an "innocent child" to save the life of an adult (the mother)? (Self-defense can't be invoked if there's no criminal intent on the part of the fetus.) The "no exceptions" crowd, much as I disagree with them, at least have a coherent philosophy (tough as it might be on women). People like McCain, or the authors of this bill, are simply hypocrites.

: this has a chance of passing (none / 0) (#7)
by txpublicdefender on Sun Sep 21, 2008 at 01:15:42 PM EST

The citizens overturned an earlier attempt at a law without the exceptions. The proponents of this bill would no doubt prefer a bill with no exceptions, but it won't pass. They'll take what they can get.

: Most true pro-lifers (none / 0) (#11)
by tootired on Sun Sep 21, 2008 at 01:54:01 PM EST

do not support exceptions for rape or incest. When the life of the mother is at stake, then it becomes a choice between the two lives. If you believe that a fetus is a baby from the moment of conception, then taking that life is murder no matter what the circumstances of its conception were. Although I am pro-choice, I respect this view. The so-called pro-lifers who argue for exceptions for rape and incest seem to be saying that a woman who enjoys the conception should be made to carry the baby to term, but if she was an unwilling participant, then we won't "punish her". Somehow the baby's life is irrelevant. I don't support this view.

: It's hypocrisy, alright (none / 0) (#16)
by litigatormom on Sun Sep 21, 2008 at 06:50:12 PM EST

Legislation with exceptions is the Trojan Horse. Once the only "legal" abortions are based on maternal health or rape/incest, there will be a bunch of Christianist mullahs who get to determine whether the doctors who think the woman's health or life is threatened are being "reasonable." The mullahs will also rule on whether a rape victim was really raped, or "led the guy on."
With all the talk about Islamofascism, I wish someone would talk about the threat to our freedoms posed by evango-fascism.

This makes no sense (none / 0) (#12)
by Birmingham Blues on Sun Sep 21, 2008 at 02:47:53 PM EST

The 'candidates' of this particular initiative are the women who have been harmed, those who feel they had a right to have a relationship with her child," said Unruh, who had an abortion.

Is Unruh trying to say that someone forced her to have an abortion? How exactly whas her "right to have a relationship" with her child violated? She had the freedom to make the decision, and she made it. I thought conservatives were supposed to be big on personal responsibility. Guess not.

: Not unusual (none / 0) (#13)
by clio on Sun Sep 21, 2008 at 03:25:53 PM EST

About 25% of women having abortions consider themselves "pro-life." Their immediate reaction to a completed abortion, as it is for almost all women, is overwhelming relief.
Obviously, however, these women face psychological conflicts of varying severity which become more intense as the stresses of the unwanted pregnancy and abortion decision recede. Many resolve the obvious contradictions by maintaining that "exceptional" circumstances justified the procedure for them, but do not for other women in similar circumstances.
Other personality types cannot go even this far. They will come to believe - after the procedure has been done - that they would "never have had an abortion if...(insert justification)..."
These women resolve the conflicts between what they think they believe and what they actually do by convincing themselves that they were "forced" into this voluntary action. This usually takes a little time and occurs after the immediate crisis (the unwanted pregnancy) has passed and other psychological pressures become paramount.

: Regret (none / 0) (#17)
by litigatormom on Sun Sep 21, 2008 at 07:05:39 PM EST

I'm fortunate in that I have never been faced with the need to consider abortion, but I know many who have. Even the staunchest supporters of abortion rights often feel regret after having an abortion. It's completely normal. One of the great shibboleths of the anti-abortion right is that women have abortions casually, and have no respect for the potential life they carry. Women don't have abortions on a whim; they have abortions because they need them. It's not an easy choice, because most women have already had children or want children in the future. It's not easy to terminate a pregnancy, no matter how clear it is that abortion is the right choice at the time.
Justice Kennedy wrote in a recent opinion that one of the states' interest in enacting legislation that puts limits on abortion is to protect women from the emotional consequences of having an abortion. The South Dakota legislation takes its inspiration from this notion that women lack the capacity to make hard choices, to accept the fact that sometimes there are no "good" choices, and that they will regret whichever choice they make.
Sorry, I start to froth at the mouth when I start thinking about this.

by comparison (none / 0) (#20)
by Joe Bob on Mon Sep 22, 2008 at 12:15:31 AM EST

...abortion increases the risk of "suicide ideation and suicide,"

The real question then becomes: Is this more or less true than it is for women who give birth? There's such a thing as post-partum depression, right?

The next logical question would be: Who would experience more suicidal ideation: women who had abortions? Or women coerced into carrying pregnancies they don't want to term?

Oh, another logical question: Of every 1,000 abortion procedures, how many are the proximate cause of a woman's suicide? By comparison, of every 1,000 pregnancies/births, how many result in the death of the mother?

I will probably never agree with how the anti-abortion sects conduct themselves in the political realm, but I would despise them less if we could get an honest argument out of them. So, can we dispense with the charade that they are motivated by the well-being of women?

So what? (none / 0) (#21)
by diogenes on Mon Sep 22, 2008 at 11:34:39 AM EST

If you overturn Roe versus Wade (a questionably reasoned legal decision), then women in South Dakota will go to Minnesota for abortions and the right will lose one of the unifying points and fundraisers for itself.
Women in South Dakota already travel hundreds of miles; I doubt that there are many clinic that do abortions in that huge state.