by John M. Curtis
(310) 204-8700

Copyright March 6, 2006
All Rights Reserved.

randstanding for religious right, South Dakota Gov. Mike Rounds signed a bill banning all abortions, except where the mother's life is at risk. Violating Roe v. Wade, South Dakota's new legislation sets up a collision course with the federal courts—likely to rule against South Dakota's maverick anti-abortion law. South Dakota offers no exception for rape or incest, following, to the letter, religious conservatives trying to challenge the Supreme Court's 1973 landmark ruling legalizing abortion. While Rounds plays the hero for pro-lifers, South Dakota's latest move could boomerang, with U.S. District Court striking down the new legislation. Pro-life groups hope that South Dakota's current gambit reaches the U.S. Supreme Court, where newly minted conservative Chief Justice John G. Roberts and Associate Justice Samuel A. Alito are inclined against Roe.

      Rounds hogged his moment in the sun, serving as a lightening rod in the latest abortion wars. Not since the late President Ronald Reagan defended the rights of the unborn while debating former Jimmy Carter in 1980 has so much attention focused on the right-to-life movement. Reagan sought, but never got, a constitutional amendment banning abortion, though the 1980 GOP platform included a litmus test for federal judges demanding they show “respect innocent life.” “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,” said Rounds, agreeing with the intent of legislation, designed to protect embryos and fetuses from abortions. “The sponsors and supporters of the bill believe that abortion is wrong because unborn children are the most vulnerable and most hopeless persons in our society. I agree with them,” said Rounds.

      Pro-life groups frequently refer to embryos and fetuses as “children” and “persons” to make their appeal to the anti-abortion crowd. Whether of not you support abortion, calling embryos and fetuses “children” or “persons” adds to the emotional debate but compounds the problem by misstating development stages. Most pro-life groups believe that life begins at conception, entitling embryos and fetuses to certain inalienable constitutional protections, including the right to life, liberty and the pursuit of happiness. South Dakota's legislature cleverly decided to pass the abortion ban after Roberts and Alito won appointments to the High Court. South Dakota's obvious attempt to challenge Roe v. Wade could antagonize the Supreme Court, allowing lower courts to resolve the case. Passing legislation simply to challenge a 33-year-old ruling adds nothing to the constitutional debate.

      Before the ink was dry on Rounds' signature, South Dakota's Planned Parenthood promised a legal challenge, guaranteeing the new legislation won't take effect July 1. Lawmakers already announced that an anonymous donor pledged $1 million dollars to fight legal challenges to the bill that violates Roe v. Wade. Rounds is proud of the fact the new law specifies stiff penalties for doctors performing abortions, possibly five-year sentences. Rounds considers himself more balanced, having vetoed an earlier bill two years ago that banned abortions even when the mother's health was at stake. Religious conservatives dominate the South Dakota legislature, setting a higher priority for anti-abortion legislation than the corn-based ethanol industry. For many religious conservatives, pro-life issues eclipse all domestic and foreign policy, including the Iraq war, economy, healthcare, Medicare or Social Security.

      In Roberts' confirmation hearings, the new Chief Justice made it clear he viewed Roe v. Wade as a matter of settled law. Alito opened the door to possible legal challenges, citing ample precedent. Passing a new law directly violating Roe v. Wade was not the legal challenge Roberts' imagined would confront the High Court. Roberts and Alito are not likely tricked into voting against established law unless there's a compelling constitutional rationale. If there's no new angle like the 14th Amendment or “due process,” it's unlikely the High Court would review Roe v. Wade. Religious conservatives won't seduce the High Court into deciding when life begins, or, for that matter, at what developmental stage the Constitution kicks into gear. Medical, legal and religious experts all have opinions as to when the un-born's rights supersede those of expected parents.

      South Dakota's legislature performed some fancy footwork trying to force settled law back into the federal courts. Allowing state governors and legislatures to exploit the federal courts sets a dangerous precedent, ignoring other federal laws that add legal uniformity to the United States. While it's OK to respect states' rights, it's not OK for states to bypass constitutional protections assured under the federalist system. By the same token, frustrated governors also shouldn't be allowed to bypass state legislatures because they can't pass an eccentric agenda, such was the case when California Gov. Arnold Schwarzenegger tried to impose his agenda directly by referendum. No matter how rebellious individual states, federal courts must send a loud message to South Dakota, striking down its unconstitutional abortion ban and ignoring its egregious attempt to manipulate the system.

About the Author

John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He's editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.

©1999-2005 Discobolos Consulting Services, Inc.
(310) 204-8300
All Rights Reserved.