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how can they do this if Row v. Wade is on the books?


South Dakota House Approves Bill Banning Nearly All Abortions
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By THE ASSOCIATED PRESS
Published: February 24, 2006
Filed at 6:04 p.m. ET

PIERRE, S.D. (AP) -- South Dakota lawmakers approved a ban on nearly all abortions Friday, setting up a deliberate frontal assault on Roe v. Wade at a time when some activists see the U.S. Supreme Court as more willing than ever to overturn the 33-year-old decision.

Republican Gov. Mike Rounds said he was inclined to sign the bill, which would make it a crime for doctors to perform an abortion unless it was necessary to save the woman's life. The measure would make no exception in cases of rape or incest.

Many opponents and supporters of abortion rights believe the U.S. Supreme Court is more likely to overturn its 1973 Roe v. Wade decision legalizing abortion now that conservatives John Roberts and Samuel Alito are on the bench. Lawmakers said growing support among South Dakotans for abortion restrictions added momentum to the bill.

''I think the stars are aligned,'' said House Speaker Matthew Michels, a Republican. ''Simply put, now is the time.''

Planned Parenthood, which operates the only abortion clinic in South Dakota, has pledged to sue over the measure. About 800 abortions a year are performed in South Dakota.

Some opponents of the bill said abortion should at least be allowed in cases of rape or incest, or where the woman's health is threatened.

If a rape victim becomes pregnant and bears a child, the rapist could have the same parental rights as the mother, said Krista Heeren-Graber, executive director of the South Dakota Network Against Family Violence and Sexual Assault.

''The idea the rapist could be in the child's life ... makes the woman very, very fearful. Sometimes they need to have choice,'' Heeren-Graber said.

Under the measure, doctors could get up to five years in prison for performing an illegal abortion. The House passed the bill 50-18 on Friday, and the Senate approved it 23-12 earlier this week. If signed, it would become law July 1.

Money for the anticipated legal fight is already pouring in. Lawmakers were told during the debate that an anonymous donor has pledged $1 million to defend the ban, and the Legislature is setting up a special account to accept donations.

''We've had people stopping in our office trying to drop off checks to promote the defense of this legislation already,'' Rounds said.

Leslee Unruh, president of the Alpha Center, a Sioux Falls pregnancy counseling agency that tries to steer women away from abortion, said most of the abortions performed in South Dakota do not stem from rape or even failed contraception, but are simply ''conveniences.''

Unruh said she believes most South Dakota women want the state to ban abortion, and many who have had abortions ''wish someone would have stopped them.''

The governor said he believes it would be better to eliminate abortion in steps rather than all at once. Rounds indicated he does not share the view that Alito and Roberts will usher in sudden, dramatic changes in how the court views abortion. He said it could be a drawn-out legal battle, and noted that it is not even assured that the high court will hear the case.

The bill ''may satisfy a lot of individuals out there who would like to see if there is one slim chance the court may entertain three years from now a direct assault on Roe v. Wade,'' Rounds said.

He added, however: ''I've indicated I'm pro-life and I do believe abortion is wrong and that we should do everything we can to save lives. If this bill accomplishes that, then I am inclined to sign the bill into law.''

Rounds said his staff will review the bill for technical defects. He noted that he vetoed a similar measure two years ago because it would have wiped out all existing restrictions on abortion while the bill was challenged in court.

Some advocates said an abortion ban would hurt poor women the most by forcing them to travel long distances to other states where the procedure is legal.

''It's a sad state of affairs that we have only one choice right now'' in South Dakoa, said Charon Asetoyer of the Native American Women's Health Care Education Resource Center. ''But if you have to go out of state, the cost of making that trip will be prohibitive.''

Kate Looby, Planned Parenthood director in Sioux Falls, said women who cannot afford to travel to a clinic might be forced to turn to unsafe methods of abortion.

''We've seen it in the past in this country, we've seen it all over the world and there's no reason to believe it would not happen in South Dakota,'' Looby said.

According to the Guttmacher Institute, a reproductive rights organization in New York and Washington, similar abortion proposals are in the works in seven other states: Missouri, Indiana, Kentucky, Oklahoma, West Virginia, Georgia and Tennessee.

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The rumor is that a few SD politicians believe this is the best way to present the Roe v Wade decision to the "new" Court

It seems like the "no exception for rape or incest" would limit the chances of overturning RvW

Speaking of pet peeves. This is one for me.

How come killing a fetus is OK just because the woman was raped? Does that mean the fetus that results from something other than rape has more rights than the former? If the answer is "yes", then I guess the Constitution does not extend to every human life. I find that conclusion quite interesting.

DCC2MSU wrote:It seems like the "no exception for rape or incest" would limit the chances of overturning RvW

I think South Dakota probably wanted to make the ban as broad as possible; it's pretty clear that what is going on here is a direct attack on Roe.

Difficult to predict how this would turn out with the current Court, actually. Thomas and Scalia would definitely vote to overturn Roe, regardless of the exception. Roberts and Alito are unknowns, but it is not unreasonable to think they would vote with Thomas and Scalia. Breyer, Ginsburg, Stevens and Souter can be counted on not to vote to overturn Roe, no matter what. That leaves Kennedy as the likely swing vote, and I really can't predict how he would vote.

Regardless, though, the gauntlet has clearly been thrown down.

Grizlaw wrote:

DCC2MSU wrote:It seems like the "no exception for rape or incest" would limit the chances of overturning RvW

I think South Dakota probably wanted to make the ban as broad as possible; it's pretty clear that what is going on here is a direct attack on Roe.

Difficult to predict how this would turn out with the current Court, actually. Thomas and Scalia would definitely vote to overturn Roe, regardless of the exception. Roberts and Alito are unknowns, but it is not unreasonable to think they would vote with Thomas and Scalia. Breyer, Ginsburg, Stevens and Souter can be counted on not to vote to overturn Roe, no matter what. That leaves Kennedy as the likely swing vote, and I really can't predict how he would vote.

Regardless, though, the gauntlet has clearly been thrown down.

Hasn't Kennedy tended to vote on a consistency that is level with Breyer, Ginsburg, and Souter?

I found this interesting tidbit this weekend regarding the definition of pregnancy in a well-respected medical dictionary (Stedman's).

The 2000 edition has a definition consistent with pregnancy being defined as when the fertilized egg is implanted on the uterus.

The 2005-2006 version seems to define pregnancy as when the egg is fertilized (note: before implantation onto the uterus).

As someone who is pro-choice, I am at odds over this sudden change in definition of pregnancy but is it too far fetched to believe that this change in definition was politically motivated?

lifeloyalsigmsu wrote:Hasn't Kennedy tended to vote on a consistency that is level with Breyer, Ginsburg, and Souter?

No, not consistently. Kennedy is a centrist; he's to the left of Scalia and Thomas, but definitely to the right of Breyer, Souter, Ginsburg and Stevens.

On the old Court, Kennedy and O'Connor were always the two swing votes in controversial cases, and which block they voted with depended on the issue. I know that O'Connor wrote the opinion in Casey v. Planned Parenthood that refused to overturn Roe (though I vaguely recall there was language in the opinion that hinted that O'Connor might have decided Roe differently if she were working from a clean slate), but I don't remember how Kennedy voted in that case.

With O'Connor gone, Kennedy is now the only true centrist on the Court (although Roberts and Alito are wild cards, to an extent -- but I'm putting them in the Scalia-Thomas block until they prove me wrong).

If I had more time, I would look over some of the landmark S. Ct. holdings over the past decade or so, and try to figure out which issues Kennedy tended to vote with each block on (I honestly don't remember at the moment). There is probably enough case law in existence to make an educated prediction as to how Kennedy would vote; I just don't have time to track it down at the moment. (Spider? )

EDIT: And as an aside -- no, lifeloyal, I don't think it's at all far-fetched to think that the change in the dictionary definition of pregnancy was politically motivated; in fact, you probably hit the nail directly on the head.

i had a feeling once Roberts was appointed we'd have roe v wade being up for grabs again, because of Roberts vote history on this subject. I still (as a pro choice woman) find it shocking how many attempts are being made to make the procedure "illegal". It will continue to happen even if deemed so, and now you are risking 2 lives. I guess you can always just go North to Canada and find a doctor if it's over turned. I still think it should be legal, regulated and made safe for those women that wish to have them.

How come killing a fetus is OK just because the woman was raped? Does that mean the fetus that results from something other than rape has more rights than the former? If the answer is "yes", then I guess the Constitution does not extend to every human life. I find that conclusion quite interesting.

Bleedin - I think that this is stated BECAUSE rape is an act of VIOLENCE on a woman. if by that horrible act seem becomes pregnant forcing a woman to keep the rapist child would scar her much worse than the rape itself. rape is HORRIBLE, and deeply traumatic to a woman, WHY should she have to or even want to keep the rapist child? I don't think a fetus has more rights one way or the other I think compassion should be given in the case of a TRUE rape, and therefore should not be illegal to abort that fetus.

A very personal mixture of politics and religion, I don't think that abortion will ever be a settled issue. There is too wide of a split, and very heated feelings on both sides.

Very strong points Rebecca. Abortion is a touchy issue that, IMO, will probably not go away regardless if RoevWade is overturned. Much like the prohibition I would be willing to bet that if Abortion was completley illegal it would continue to be done through a "black market" if you will.

I'm torn, by my faith and my political beliefs. On one hand I ask, who is the government to tell people what to do with their bodies. The point Rebecca makes are good ones too, why should the woman have to suffer 9 more months after rape/incest? Of course the other hand my spiritual beliefs/leaders tell me that its murder, and after just having a son its hard to believe that there wasn't a human being in my wife for those 9 months.

Right now I guess I'd stand on the side of having the US hand over the decision to the states, and letting each states voters make the decision. I guess thats as close to a "win-win" as you'll ever get.

IF and I mean IF Roe V. Wade is overturned. Does anybody have an educated guess as to how many states would legalize abortion.

I don't think it would be as simple as red states and blue states but could be wrong.

Oh yeah, it does go beyond red states and blue states. I would think many (if not most) would have a rape/incest allowance. As for all out legal abortions, maybe a handful.

Molly Ivins: South Dakota's stand

Tuesday, March 7, 2006; Posted: 2:41 p.m. EST (19:41 GMT)

What Is This? AUSTIN, Texas (Creators Syndicate) -- South Dakota is so rarely found on the leading edge of the far out, the wiggy, the California-esque. But it has now staked its claim. First to Outlaw Abortion This Century. The state legislature of South Dakota, in all its wisdom and majesty, a legislature comprised of sons and daughters of the soil from Aberdeen to Zell, have usurped the right of the women of that state to decide whether or not to bear the child of an unwanted pregnancy. THEY will decide. Women will do what they decide.

These towering solons, representing citizens from the great cosmopolitan centers of Rapid City and Sioux Falls to the bosky dells near Yankton, are noted for their sagacity and understanding. When you think "enlightenment," the first thing that comes to your mind is "the South Dakota Legislature," right?

As well it might. The purpose of the law is to force a decision from the United States Supreme Court, where the appointments of John Roberts and Sam Alito have now shored up the anti-choice forces.

The South Dakota Legislature has made it a crime for a doctor to perform an abortion under any circumstances except to save the life of the mother. There are no exceptions for rape, incest or to preserve the health of the mother. Should this strike you as hard cheese, State Sen. Bill Napoli, R-Rapid City, explains how rape and incest could be exceptions under the "life" clause. Napoli believes most abortions are performed for "convenience," but he told "The NewsHour With Jim Lehrer" about how he thinks a "real-life example" of the exception could be invoked:

"A real-life description to me would be a rape victim, brutally raped, savaged. The girl was a virgin. She was religious. She planned on saving her virginity until she was married. She was brutalized and raped, sodomized as bad as you can possibly make it, and is impregnated. I mean, that girl, could be so messed up, physically and psychologically, that carrying that child could very well threaten her life."

Please stop and reread the paragraph above. See? Clearly Napoli's exception would not apply to the South Dakota woman also interviewed by the NewsHour. "Michelle" is in her 20s, has a low-paying job and two children. And says she simply cannot afford a third. She drove five hours to the state's only abortion clinic.

"It was difficult when I found out I was pregnant. I was saddened because I knew that I'd probably have to make this decision. Like I said, I have two children, so I look into their eyes and I love them. It's been difficult, you know, it's not easy. And I don't think it's, you know, ever easy on a woman, but we need that choice."

But who is she to make that choice when Bill Napoli can make it for her? He explains: "When I was growing up here in the wild west, if a young man got a girl pregnant out of wedlock, they got married, and the whole darned neighborhood was involved in that wedding. I mean, you just didn't allow that sort of thing to happen, you know? I mean, they wanted that child to be brought up in a home with two parents, you know, that whole story. And so I happen to believe that can happen again. ... I don't think we're so far beyond that, that we can't go back to that."

I find this so profound I am considering putting Sen. Napoli in charge of all moral, ethical and medical decisions made by women. Certainly lucky for the women of South Dakota that he's there, and perhaps that's what we all need -- a man to make decisions for us in case we should decide to do something serious just for our own convenience.

Look at some of the incompetent women we have running around in this country -- Condoleezza Rice and Madeleine Albright, now there are a couple of girls in need of guidance from the South Dakota legislature. Female doctors, lawyers, airplane pilots, engineers and, for that matter, female members of the South Dakota Legislature -- who could ever trust them with an important decision?

In South Dakota, pharmacists can refuse to fill a prescription for contraceptives should it trouble their conscience, and some groups who worked on the anti-abortion bill believe contraception also needs to be outlawed. Good plan. After that, we'll reconsider women's property rights, civil right and voting rights.

For years, the women's movement has been going around asking, "Who decides?" as though that were the issue. Well, here's the answer. Bill Napoli decides, and if you're not happy with that arrangement, well, you'd better be prepared to do something about it.

OK, I might make myself look a little dumb here, and anyone with more legal experience help me out, but in theory isn't the Supreme Courts job in cases like this to interpet the law based upon the case presented to them?

If so Roe v Wade is law, so wouldn't there need to be some sort of new evidence to have a case like this even make it to the Supreme Court? And I believe both new judges said they respect and believe in the law as it is written (yeah I know, Bush said he wasn't going to spend much in Iraq either) so if they were to handle a case if this is legal or not wouldn't the simple interpetation be that it would be illegal for SD to make this law?

Help me out here, I'm obviously no legal scholar.

Re/Max Griz wrote:OK, I might make myself look a little dumb here, and anyone with more legal experience help me out, but in theory isn't the Supreme Courts job in cases like this to interpet the law based upon the case presented to them?

If so Roe v Wade is law, so wouldn't there need to be some sort of new evidence to have a case like this even make it to the Supreme Court? And I believe both new judges said they respect and believe in the law as it is written (yeah I know, Bush said he wasn't going to spend much in Iraq either) so if they were to handle a case if this is legal or not wouldn't the simple interpetation be that it would be illegal for SD to make this law?

Help me out here, I'm obviously no legal scholar.

I've been meaning to respond to this, but it has the potential to become a very long post, and I haven't had time (and don't right now either, really). I'll keep it short, and do the best I can.

There are really two questions built into your post. First is the procedural question of how can a case like this get before the Supreme Court, and secondly, the more general question of whether the Supreme Court can or should overturn its own existing precedent.

The first question is fairly straightforward: South Dakota has passed a law that is clearly unconstitutional under Roe. Nonetheless, though, until the S.D. statute is ruled unconstitutional by a court, it is the law in S. Dakota. Within the next few months, a woman somewhere in S. Dakota will want to have an abortion, and she will sue the state of S. Dakota in federal court, asking the court to enjoin the state from enforcing its law. She'll win in the trial court, because the trial court will be bound by Roe. The state will appeal to the appropriate circuit court of appeals, and she'll win there, too (b/c the circuit court is also bound by Roe). After losing in the circuit court, the state will appeal to the Supreme Court. The S. Ct. doesn't have to hear the case, but if four of the nine justices vote in favor of hearing it, then it will be heard -- that seems likely in this case.

The greater question of whether the Court can/should be willing to overturn its own precedent is a harder question, and there is a lot of disagreement about it within the legal community. Technically, the Supreme Court is not really bound by its own prior cases -- as the highest court in the land, it has the power to decide cases as it sees fit, and that includes issuing opinions that are in conflict with its own previous cases where the current Court believes the prior cases were incorrectly decided. However, one of the cornerstones of our legal system is the precedential value of case law, and most lawyers and judges basically agree that it is not a positive thing to have a Supreme Court that changes its mind on important issues every time a new set of justices is appointed. Thus, while the Court can, theoretically, overrule Roe, it is possible that it would not do so, even if a majority of the Court does believe Roe was incorrectly decided, because it's possible that the justices respect the value of judicial precedent more strongly than they disagree with Roe.

Anyway, that's the issue. I'm not even sure how I feel about it myself, to be honest -- I think the legal reasoning behind the Roe opinion was a little questionable (and that's my legal opinion, not my personal feelings about abortion), but I wouldn't want Roe to be overturned if it also meant that the Supreme Court's precedent on all major issues was suddenly going to be up in the air.

--GL

Thanks GL, I was just wondering about the legal process of it.

briannell wrote:i had a feeling once Roberts was appointed we'd have roe v wade being up for grabs again, because of Roberts vote history on this subject. I still (as a pro choice woman) find it shocking how many attempts are being made to make the procedure "illegal". It will continue to happen even if deemed so, and now you are risking 2 lives. I guess you can always just go North to Canada and find a doctor if it's over turned. I still think it should be legal, regulated and made safe for those women that wish to have them.

How come killing a fetus is OK just because the woman was raped? Does that mean the fetus that results from something other than rape has more rights than the former? If the answer is "yes", then I guess the Constitution does not extend to every human life. I find that conclusion quite interesting.

Bleedin - I think that this is stated BECAUSE rape is an act of VIOLENCE on a woman. if by that horrible act seem becomes pregnant forcing a woman to keep the rapist child would scar her much worse than the rape itself. rape is HORRIBLE, and deeply traumatic to a woman, WHY should she have to or even want to keep the rapist child? I don't think a fetus has more rights one way or the other I think compassion should be given in the case of a TRUE rape, and therefore should not be illegal to abort that fetus.

Rebecca, this post is in no way intended to imply that your beliefs on the subject are not justified, just a different perspective. First of all, two wrongs dont make a right. Is the woman who is raped supposed to feel better about what happened by killing the child she is caring. There are thousands of people out there that cannot have children and could provide a good home. Im sure if you talked to most people who are adopted they are glad that their mother went that route. I know women who have had abortions and it haunts them to this day. By having an abortion after something as horrific as rape I think would only add to the pain and suffering in the long run.

I know women who have had abortions and who are very glad they did. In the case of rape (or any case, for that matter), how can anyone claim to be in a position to make a better decision than the woman herself?

mm7cat -

well, since you directed your post to me specifically, I can only answer in a "if it were me" scenario. I love both my kids, so I do have a mom view on abortion (it's not what I would choose), however, if some sack of sheep manure raped me, and I was left pregnant it would disgust me to the ends of the earth to have to carry that child to term. I morally would, but would not raise my rapists child. that is just what I would do, however, I've know plenty (almost a dozen) women that have had abortions for different reasons, and yes it haunts them too.

I think for other women it may be a relief to not have an "abortion" per say, but to be given the morning after pill once the rape was reported. i would take one of those immediately after reporting a rape to police. I would not want the vile sperm of my attacker growing inside of me for 9 months, that would devastate me even further.

i have several members of my family that are adopted and we are very grateful to their mothers.

The Wall Street Journal ran a full-page article on the South Dakota statute today. Apparently, a number of other states are looking at enacting similar laws (some with exceptions for rape and incest, and some with no exceptions whatsoever).

What raised my eyebrows, though, was one quote in the article. Without any elaboration, the article said that "A majority of the Supreme Court's justices are still expected to uphold Roe v. Wade." Though the article didn't elaborate, I can only assume that the author expects Kennedy to vote to uphold Roe.