South Dakota Considering Banning Abortion

South Dakota’s legislature is considering “a bill making abortion a crime unless it is necessary to save the life of the mother.” (Link via Evangelical Outpost).

Pro-lifers are by no means united in support of this bill (here’s the text of the bill, by the way). Some worry that the bill would cost South Dakota taxpayers a lot of money to defend in court, but will ultimately be found unconstitutional and thus not actually prevent any abortions. Others seem to believe that the bill takes advantage of a loophole in Roe v. Wade. From Christus Vector:

The first paradox is that the bill is not only constitutional under a proper interpretation of the Fourteenth amendment, it may very well be compatible with Roe v. Wade. This is because the bill contains explicit findings that human life begins at conception, and that the state therefore has a compelling interest in the protection of that life. This is important because the court in Roe declined to decide when life begins, saying instead that since it wasn’t clear that life did begin at conception that possibility couldn’t override a women’s right to have an abortion. This, combined with the deference generally given to legislative findings of fact, means that it should be possible for a state to provide the missing basis for what the court in Roe admitted would be a compelling governmental interest in prohibiting abortion.

As I pointed out in Christus Vector’s comments, I don’t think the legal argument has much merit. There are two questions to be considered: First, is the Supreme Court obliged to defer to legislative fact-finding, and second, what does Roe really say.

Regarding deference, the conservatives on the Supreme Court have made it clear that they don’t consider themselves bound by congressional fact-finding. See, for instance, their decision overturning parts of the Violence Against Women Act (VAWA), on the grounds that VAWA had no relationship to interstate commerce, despite extensive congressional fact-finding which found just the opposite.

As Clarence Thomas once wrote (pdf file):

We know of no support… for the proposition that if the constitutionality of a statute depends in part on the existence of certain facts, a court may not review a legislature’s judgment that the facts exist. If a legislature could make a statute constitutional simply by ‘finding’ that black is white or freedom, slavery, judicial review would be an elaborate farce. At least since Marbury v. Madison (1803), that has not been the law.

As for the supposed loophole in Roe, to me it seems like wishful thinking on the part of some pro-lifers. Here’s the relevant passage from the Roe v. Wade decision:

Texas urges that, apart from the Fourteenth Amendment, life begins at conception and is present throughout pregnancy, and that, therefore, the State has a compelling interest in protecting that life from and after conception. We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

It should be sufficient to note briefly the wide divergence of thinking on this most sensitive and difficult question.[....]

In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

It seems clear that the logic of Roe is not threatened by South Dakota’s bill declaring that life begins at conception – just cross out “Texas” and write in “South Dakota,” and the problem is solved.

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12 Responses to South Dakota Considering Banning Abortion

  1. Pingback: No Fear of Freedom

  2. 1
    Erika says:

    Rad Geek: I do personally endorse the line of reasoning I used above.

    I think your reading of the passage is valid too; it would be interesting to see other cases that cite that passage from Roe have read it as well.

    Interesting citation of the 13th Amendment, but the question that always comes up for me in comparisons of pregnancy to slavery is, who is the woman a slave to? The fetus? Or the state mandating her continued pregnancy? The state is well within its rights to take away some of our bodily control, so if that’s the answer to “who’s enslaving the woman?”, I’m not sure then that it really makes the point for continued legalized abortion.

  3. 2
    Deep River Appartments says:

    Joe sez:
    “Which means that the Court was flat out lying when it claimed that it wasn’t going to decide that question.”

    Perhaps it was a lie, but at least a reasonable one. A fetus is obviously not a person by any secular measure, and our courts must theoretically only recognize earthly plane reasoning.

    The decision was phrased in that manner to placate those emotional religious types who insist on forcing their purely theological idea of when life begins on the rest of the nation.

  4. 3
    Joe M. says:

    The problem is that you’re quoting the most dishonest passage from Roe (and there are many to choose from). On one hand, the Court claims that it’s not going to resolve the question of “when life begins.” But it had already said that if the fetus were a human life, then its right to life would be specifically guaranteed by the Fourteenth Amendment. So by saying that women have a right to abortion, rather than saying that fetuses have a right not to be aborted, the Court by its own logic was necessarily taking a position on when life begins. Which means that the Court was flat out lying when it claimed that it wasn’t going to decide that question.

  5. 4
    Ampersand says:

    Whoops- South is is. Correction made.

  6. 5
    PinkDreamPoppies says:

    “South is is”? You’re fun, Amp. ;)

  7. 6
    Ampersand says:

    Grumble, mutter, mutter. :-p

  8. 7
    Erika says:

    In view of all this, we do not agree that, by adopting one theory of life, Texas may override the rights of the pregnant woman that are at stake.

    That passage would seem to actually concede the pro-life view of life, anyway, and then go on to say that when life begins doesn’t matter – essentially “Even if we adopt your theory that life begins at conception, the pregnant woman still has rights that can’t be tossed away.”

  9. In a later abortion case, carey? casey? something like that? Justice O’Connor specifically rejected the idea of deference to legislatures as to when life begins.
    On the other hand, I think she was wrong. I think in Roe the court decided the unborn have no rights, and that’s a rather presumptous legislating-from-the-bench.
    Roe was based on the rights of the mother versus the state interests, with no weight given to the rights of the baby.
    Often i’m critical of judicial deference to legislatures, as in McConnell v FEC where the court deferred to congress making it illegal to criticize congress – that’s exactly when they aren’t supposed to defer.
    Usually i’m extremely critical of legislatures passing things that are blatantly unco based on court precedent. In those cases the legislators are violating their oath of office to uphold the constitution.
    There are times, tho, when a legislator can have honest disagreements about what the constitution requires, and i think abortion is one of those areas.
    So I think a dakotan legislator could vote for the bill, if she thought it was a good bill, but I also think it’ll go down in flames in court.
    meanwhile, i’ve been reading this blog for awhile and today by accident found the main site with the cartoons – cool.

  10. 9
    Deep River Appartments says:

    Some good points Arbitrary Aardvark, but I’m confused as to how an entity with a mind little more sophisticated than a vegetable is entitled to rights that supercede those of the intelligent, fully formed individual it is inhabiting.

    But since intelligent, reasonable people can somehow assume that fetuses have noteworthy personalities and interests, let’s take the next step and give the unborn the choice whether to come into existence in the first place. Not such a strange notion when you consider people whose lives are pretty much a stretch of pain and drudgery that ends in suicide anyway. All we have to do is contact the fetus before it is conceived, and give it the ability to overturn the dictatorial decision its parents might make in creating it…

    It always baffles me how in issues like this one emotional arguments are given the same weight as common sensical scientific ones without anyone thinking it strange. Would this happen in a nation that had a true division between church and state?

  11. 10
    Rad Geek says:

    Erika remarks on a passage from _Roe_:

    ‘That passage would seem to actually concede the pro-life view of life, anyway, and then go on to say that when life begins doesn’t matter – essentially “Even if we adopt your theory that life begins at conception, the pregnant woman still has rights that can’t be tossed away.”‘

    If the court had actually used this line of reasoning in _Roe_ I’d feel much more comfortable with the decision (and I think it would face far fewer weaselly quasi-legal challenges in state legislatures) than I do. But I can’t unfortunately, agree that that’s the right way to read the decision. The court seems to be arguing that ***given*** the lack of clear consensus on when life begins (hence, the rehearsal of all the different views on the matter), it’s presumptuous of the State to declare in favor of one or another view and invade a woman’s sphere of privacy to legislate on it. In _Roe_ they seem to think of the matter much as if the legislature passed a bill stating “WHEREAS the pricking of a voodoo doll with needles is an act of damn’d witchcraft in assault on an innocent victim, BE IT RESOLVED that all those who shall prick a voodoo doll with needles, intending thereby to commit assault, shall be burned at the stake.” Of course, if it were **true** that sticking a voodoo doll with needles really was an assault by means of black magic then surely it would be within the State’s purview to punish people who do such things. But given that there is no reasonable consensus that pricking voodoo dolls really is damn’d witchraft &c., the State has no good grounds for getting involved… and it’s not changed even if the legislative bill comes out and declares for the black magic theory of voodoo-doll-pricking.

    But applying this reasoning in the case of _abortion_ has had some really harsh effects for reproductive choice. By pinning the case to arguments over the balance between consensus about fetal legal standing and a woman’s reasonable sphere of privacy, the court directly legitimized the 30 year assault we have seen of chipping away at abortion rights and abortion access around the edges of the law where the court let “compelling State interest” in: regulations on second and third trimester abortions, parental consent and parental notification laws, variations on the theme of procedure bans, and so on. That’s because it systematically shifts the debate away from a serious debate about women’s reproductive choice and women’s control over their own damn bodies (thank you very much!) to murky speculation and opinion polling about fetal standing — obscuring the fact that every time the State says something about “protecting” a fetus it is thereby asserting the right to control a woman’s body and force her to give it up to the use of a fetus as they say she must.

    It seems to me that the strongest case you can make for abortion rights is this: a woman has the right to control her own body; that includes her uterine lining. A **fully grown person** would have no right to demand the use of her internal organs against her will, even if it is necessary for that person’s survival; that would be a form of slavery. So what possible case could there be for using the sword of the State to enforce a demand on behalf of a fetus that a grown person couldn’t rightly enforce? If Erika is endorsing the line of reasoning she glosses above, I wholeheartedly agree with her; but I fear that that means we disagree with the Supreme Court’s reasoning in _Roe_. The place to find abortion rights in the Constitution is not under the penumbra of the Bill of Rights or the Fourteenth Amendment; it is in the **Thirteenth Amendment**:

    AMENDMENT XIII

    Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

  12. 11
    PinkDreamPoppies says:

    At the beginning of the post you say South Dakota; at the end, it’s North Dakota. Which Dakota is it?