For abortion foes, a South Dakota strategy
PIERRE, South Dakota -- Abortion opponents are trying to use this state as a national platform to challenge the US Supreme Court's decision in Roe v. Wade, as the Legislature moves toward passage of a state law that would outlaw virtually all abortions.
With little hope of reversing the decision with the current court, antiabortion advocates from New Jersey, California, and a host of other states have traveled to the state Capitol in recent weeks to support South Dakota lawmakers who are pushing the measure.
The lawmakers' argument, rooted in fetal homicide laws on the books in South Dakota and two dozen other states, is that an unborn life deserves equal protection under the 14th Amendment of the Constitution, and that nothing prohibits a state from expanding the definition of persons to include the unborn.
On Feb. 10, the state's House of Representatives voted 54 to 14 to outlaw all abortions except in cases where the life of the mother is at risk. The state Senate narrowly passed the bill Tuesday night, 18 to 15, in a slightly different form, allowing abortions when a pregnancy poses a serious risk to a mother's health. The House agreed to that change yesterday afternoon. The legislation contains no exception for rape or incest.
Governor Mike Rounds hasn't said whether he'll sign the bill into law, but he has said the Roe decision was wrong and points to his record as a state senator of voting to "human life at all stages."
That is the point that the legislation's prime sponsor, Representative Matt McCaulley, a Republican lawyer from Sioux Falls, hopes to make. Working with lawyers for the Thomas More Law Center at Ann
"It is important to present repeatedly to the Supreme Court laws which affirm the convictions of the American people that Roe v. Wade is totally wrong and that all human beings, including the unborn, are entitled to the protection of the law," said Charles E. Rice, a Notre Dame Law School professor emeritus who is on the center's legal board.
Most legal scholars appear to be skeptical of the South Dakota effort. "This court is not going to overturn Roe. I don't think the votes are there," said University of Tulsa law professor Paul Finkelman, an author of "A March to Liberty: Constitutional History of the United States." "Conservatives would get buried in the next election. Every suburban mom would be out voting."
Professor Michael C. Dorf of Columbia University Law School said there is a clear line of US Supreme Court decisions since Roe that found antiabortion laws unconstitutional. He said the current court would be unlikely to reverse course.
"I doubt that you will find any reputable constitutional scholar to say otherwise, though of course people may disagree about how they would like to see the courts rule," Dorf said.
Bill Gangi, professor of politics and government at St. John's University, said the South Dakota language might attract the four justices necessary for the case to be heard.
"It's not going to be decided on the merits, even if the arguments are sound," said Gangi, author of "Saving the Constitution from the Courts." "The most intellectually sound position is, do I have five votes? And the rest is irrelevant."
Christopher Wolfe, a political science professor at Marquette University, said the court never adequately answered when life begins or the issue of equal protection.
"I don't think they can. So the best thing for them to do is to simply ignore them and refuse to revisit the issue," Wolfe said. "That's the way it will remain, unless and until some of the justices on the court who support such abortion rights are replaced by new justices who care what the Constitution says, recognize the abortion precedents for the raw judicial will that they are, and vote to get rid of Roe."
