Friday, September 08, 2006

South Dakota Law New Chapter in Story of Childbearing 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 it is not such big news, It is in fact a news story that has been repeated over and over for more than a generation. But this time the story might well be headed for a disastrously different ending.

The South Dakota abortion ban, which passed the state legislature Feb.22 and was signed by Governor Mike Rounds (R), 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.

Most of the outright abortion bans predate Roe, or passed soon after it. None can be enforced now because Roe is federal precedent that applies to all states.

Roe galvanized those who oppose a woman's right to choose about childbearing, and their immediate post-Roe response was to seek sweeping abortion bans. But they lost most of those 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 Medicaid funding for abortions for poor women, requiring minors to get parental consent prior to obtaining an abortion, mandatory delays, and state-written “counseling” aimed at promoting childbirth over abortion.

Still, 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--thus far.

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. So far, this is a familiar story.

Three distinct differences today: the Court, the role of Congress, and the right's agenda

What’s most different now is the Supreme Court.

Roe was decided 7-2. The most recent rulings on abortion have been 5-4, with Justice Sandra Day O’Connor casting the pivotal 5th vote and often the person who cobbled together that razor-slim majority within a sharply divided Court. In between came numerous rulings that so pushed back the protections of Roe that some believe Roe is already a fragile shell.

The Republican right’s endgame of capturing the Supreme Court was won when Samuel Alito took the seat vacated by O’Connor. Alito authored the incremental strategy of overturning Roe restriction by restriction when he was an attorney in the U.S. Department of Justice during the Reagan administration.

Now Alito will be the pivotal vote on those very cases when they come before the Court. The South Dakota law could be the one that finally fells Roe after years of chipping away at it. 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. And an anonymous donor has offered to $1,000,000 to fund South Dakota’s legal challenge to Roe.

South Dakota is just one of the 30 states which “What if Roe Fell”, an analysis published in September, 2004, by the pro-choice Center for Reproductive Rights (CRR) predicts would either reinstate their old laws banning abortion or move swiftly to pass new bans if Roe were overturned.

But state-by-state analysis might 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-PA) has already said he will move to make it a crime to cross state lines for an abortion if it is illegal in your state, in the event Roe is overturned.

Finally, with the FDA dragging its heels on approving over-the-counter sales of the morning after 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 refusing 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 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.

The saga continues

But even then the end of this story will not have been written. The new South Dakota law could become a wake-up call to that 66 % 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.”

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

©Gloria Feldt 2006 9177155107
Gloria Feldt is the author of The War on Choice: the right-wing attack on women’s rights and how to fight back, and was president of Planned Parenthood Federation of America from 2006-2005.

Originally Published on

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