South Dakota Law New Chapter in Abortion Rights

The biggest news about the sweeping new South Dakota law that will ban all abortions except to save the woman's life - no exceptions to preserve her health or for rape or incest - is that this news story has been repeated over and over for more than a generation. But this time it might well be headed for a very different ending.

The South Dakota abortion ban, which passed the state legislature and is expected to be signed soon by Gov. Mike Rounds, a Republican, will join over a dozen state bans already on the books. It’s a head on challenge to Roe v. Wade, the 1973 U.S. Supreme Court decision that legalized abortion nationwide.

South Dakota is just one of 30 states which “What if Roe Fell”, an analysis published in September, 2004, by the pro-choice Center for Reproductive Rights, predicts would either reinstate their old laws banning abortion or quickly pass new bans if Roe were overturned. Roe galvanized those who oppose a woman's right to choose about childbearing, and their immediate response was to seek sweeping abortion bans. But anti-choice forces lost most of these battles, some by ballot initiative, some by legislative action or inaction, most by court rulings. They learned from their defeats and began to seek incremental victories: eliminating funding for abortions for poor women, requiring minors to get parental consent prior to obtaining an abortion, mandatory delays, gag rules for doctors, and state-written “counseling” aimed at promoting childbirth over abortion.

The author of the incremental strategy? Samuel Alito recommended overturning Roe restriction by restriction when he was an attorney in the U.S. Department of Justice during the Reagan administration. Alito was appointed to the U.S. Supreme Court earlier this year by President George W. Bush.

According to Eve Gartner, senior litigator for Planned Parenthood Federation of America whose Minnesota/North Dakota/South Dakota affiliate is the only abortion provider in the state, the ban will be challenged even before it is slated to go into effect July 1. There is a strong likelihood of success in the lower federal court. A familiar story, to a point.

Roe’s central tenets of a right to privacy in making childbearing decisions - the same as those in Griswold v. Connecticut in1965 that gave Americans the right to obtain birth control--and the primacy of protecting women’s health have stood the test of time - so far. What’s most different now is the Supreme Court.

Roe was decided 7-2. Recent rulings on abortion have been decided 5-4, with Justice Sandra Day O’Connor casting the pivotal fifth vote. Often she cobbled together that razor slim majority within a sharply divided Court. In between, numerous rulings so pushed back the Court’s interpretation of Roe that its once robust protections are now a fragile shell, guarded only by the imprecise “undue burden” standard. In other words, unless a restriction on a woman’s access to abortion can be proven to be an undue burden, legislative bodies can enact laws at will.

The Republican right’s political endgame of capturing the Supreme Court was won when Samuel Alito took the seat vacated by O’Connor. Now Alito will cast the pivotal vote on those very cases motivated by his incremental strategy. Already, the Alito Court has agreed to hear a challenge to the federal abortion ban, giving it one more opportunity to roll back Roe and prepare the way for its demise. An anonymous donor has offered $1,000,000 to fund South Dakota’s challenge to Roe. The South Dakota law could be the one that finally fells Roe after years of chipping away at it. Prevailing wisdom is that this would place reproductive rights law back into the purview of the states.

But state-by-state considerations could fast become moot. Another big difference from the pre-Roe era is that Congress is in the act now, passing federal laws restricting abortion in various ways but applying in all states. And Sen. Rick Santorum (R-Pennsylvania) has already said he will move to make it a crime to cross state lines for an abortion, if Roe is overturned.

Finally, with the Food and Drug Administration dragging its heels on approving over-the-counter sales of the emergency contraceptive called Plan B, half a billion dollars a year spent on abstinence-only sex education programs while family planning services are underfunded and gagged and a growing number of pharmacists refuse to fill birth control prescriptions, it is increasingly clear that much more than abortion is at risk. Overturning Roe would pull the thread that unravels the entire fabric of reproductive justice that began its evolution even before the Griswold birth control decision. That includes the right to privacy, the right to make our own childbearing decisions—to bear or beget, to use birth control or not, to have access to medically accurate sexual health information and services that are informed by science and not ideology.

Even if Roe is overturned, the end of this story will not have been written. The new South Dakota law could become a wake-up call to that two-thirds of Americans who consistently say Roe v. Wade should remain the law of the land. Most agree with Planned Parenthood’s Gartner when she says, “It would be a devastating day for women if they are no longer able to make intimate, personal decisions on their own.” Stronger language is used by advocates who charge South Dakota with violating women’s human rights.

If Roe is overturned, there could well be a pro-choice backlash equal to the anti-choice backlash after Roe. The midterm elections in 2006 and presidential election in 2008 will bring about yet another twist to the plot of this seemingly unending story.