If the courts do not step in to thwart the will of the people on July 1, a far-reaching ban on abortion will take effect in South Dakota. On March 6, South Dakota Governor Mike Rounds (R) signed into law House bill 1215, which prohibits all surgical abortions except for those committed to save the life of the mother. Starting this summer, abortion will be a felony in South Dakota, punishable by up to five years’ imprisonment.
When he signed the bill, Rounds said, “In the history of the world, the true test of a civilization is how well people treat the most vulnerable and most helpless in their society. The sponsors and supporters of this bill believe that abortion is wrong because unborn children are the most vulnerable and most helpless persons in our society. I agree with them.”
The reaction from both pro-life and pro-abortion activists was swift and all agree the law – and similar laws under consideration in five other states – is a direct challenge to the 1973 Roe v. Wade decision, which legalized abortion-on-demand in all 50 states.
Pro-abortion activists have said there will be a court challenge to the law. Planned Parenthood of Minnesota, North Dakota and South Dakota says it will both challenge and defy the law. Sarah Stoesz, PPMNS president, said, “Planned Parenthood will challenge this law in order to protect the health and rights of the women and families we serve.” She also said Planned Parenthood’s Sioux City facility, which commits 800 abortions annually, will continue doing them.
Rounds said he expects a legal challenge and, while the issue is under consideration in the courts, his state’s other regulations on abortion will remain in effect. “While this is a state and national issue,” he said, “I want to emphasize that whatever the courts decide, South Dakotans will continue to care about both the unborn child and mother. If we are pro-life, we must recognize the need to take care of women who are faced with a difficult pregnancy … We must help each mother to see the value of the gift that is a child and nurture the mother for her own sake and for the sake of her child.”
What might have been surprising is the reaction of pro-life leaders: divided.
Jim Sedlak, vice-president of the American Life League, said, “The entire nation owes a debt of gratitude to the state of South Dakota,” with the passage of the law being “a monumental step toward ending abortion in this country and protecting all innocent human beings – born and preborn.” His organization bought a newspaper ad in the Pierre Capital Journal thanking legislators for passing the abortion ban.
But other pro-lifers would rather see further incremental steps taken, worried that with five pro-Roe justices on the Supreme Court, the South Dakota ban will be overturned and the 1973 abortion decision reaffirmed. Victor Rosenblum – a Northwestern University law professor who successfully argued against federal funding of abortions before the Supreme Court of the United States in 1980 and who wants to see Roe eventually overturned – opposes the South Dakota ban. He regards the measure as “an ‘in-your-face’ effort” that “smacks of trying to make the court look at the issue on our timetable.” He said that the unintended consequence may be to provoke the court to reaffirm abortion rights just when they seem newly vulnerable. An editorial from the pro-life, conservative National Review Online said the effect of doing so will be to make Roe a “super-duper precedent” and substantially decrease the chances of getting pro-life restrictions to pass legal muster.
That same editorial called for further state- and federal-level restrictions that will chip away at abortion. Having done precisely that for more than a decade has reduced the number of surgical abortions, won converts to the pro-life side – to the point where even liberal pro-abortion Democrats must register their disdain of the abortion procedure they want to keep legal – and sets the stage for the next round of restrictions.
Frank Beckwith, professor of church-state studies at Baylor University and author of Politically Correct Death: Answering Arguments for Abortion Rights, said “At this time, given the current makeup of the judiciary,” the South Dakota ban “may actually hurt the pro-life cause in irreparable ways.”
But not everyone on the pro-life side sees it that way. Judie Brown, president of the American Life League, has criticized those advocating an incrementalist approach. She wrote on her website that one wonders “what the ‘practical’ and ‘pragmatic’ in the pro-life ranks are waiting for. After all, every abortion is an act of murder and the only way to honestly challenge the misconceived idea in Roe v. Wade that the preborn child is not a person is to confront them with the precise question of who a person is.” She derided the “political” positions of pro-lifers skeptical of the ban’s long-term viability.
Scott Klusendorf, of Life Training, responded, noting that Brown offered both insults and moral outrage at the ban’s pro-life opponents, but not a “substantial argument” against the worries that the bill will be deemed unconstitutional by the courts. Klusendorf said, “We agree with Judie on the moral principle of outlawing abortion. But we disagree on the best tactics to get there.” Klusendorf observed that the “dispute is tactical, not moral.”
At the First Things blog, Clark D. Forsythe, an attorney and president of Americans United for Life, said: “When the limits on what is politically and constitutionally possible are disregarded, the passionate moral condemnation of ‘all or nothing’ pro-life allies unnecessarily threatens the unity of the pro-life movement, reduces the pro-life movement to a carping sideshow, and strips it of any influence in American politics or culture.”
One benefit of the incremental approach, Forsythe argues, is the reduction in the number of abortions, the development of a grassroots pro-life movement and the building of “stronger and better pro-life legislators.”
The National Right to Life Committee, the Christian Science Monitor has noted, “has been notably silent on the South Dakota legislation and unavailable to the press.” The executive director of its South Dakota affiliate, Brock Greenfield, who is also a state legislator, expressed reservations about the bill, but eventually voted for it.
White House spokesman Scott McClellan repeated President George Bush’s stance: “The president believes we ought to be working to build a culture of life in America and we have taken practical, common-sense steps to help reduce the number of abortions in America.”
Other “practical” considerations include the likely effect of the future debate on the issue. As NRO stated, it puts pro-lifers, rather than pro-abortionists, on the defensive: “These laws will make it all the easier for NARAL to make that false equation. And they will shift the conversation from the subset of abortions that are politically hardest to defend (partial-birth abortions) to the subset that are among the easiest (abortions arising from rape).”
One of the criticisms of the South Dakota ban is that it is likely to galvanize the pro-abortion side and indeed it has. Cecile Richards, president of the Planned Parenthood Federation of America, said, “South Dakota has been just a tremendous wakeup call across the country,” a reminder of “how important it is who serves in state legislatures and who serves in the governor’s office.”
Planned Parenthood, the National Organization of Women, NARAL Pro-Choice America and others have vowed to redouble their efforts to fight pro-lifers. Legal experts expect that when the next Supreme Court vacancy opens, the nominee will face a tough battle to get confirmed, with pro-Roe senators pulling all the stops to prevent anyone who will affirm the South Dakota abortion precedent from ascending to the nation’s top court.
The South Dakota ban, and similar ones in five others states, illustrate there is widespread resistance to abortion-on-demand within the United States. The reaction of the pro-abortion lobby signals they are going to fight this all the way. The legal and political battles have only just begun, for even when Roe is overturned, abortion will remain legal, unless a federal human life amendment to the constitution is passed. The defeat of Roe would return the abortion issue to the states and that all but guarantees that South Dakota will be the first of 50 state-level battles over abortion in the years to come.