WASHINGTON (ABP) — A wide-ranging abortion ban that South Dakota legislators passed Feb. 24 is poised to head exactly where its backers want it — the Supreme Court.
But despite the addition of two new conservative justices, the high court still may lack the votes needed to hear a challenge to basic abortion rights, warned some abortion opponents.
“In essence, we don't think that there is much of a chance that the court will even review this law,” said Daniel McConchie, vice president of the Chicago-based Americans United for Life.
Members of the South Dakota House of Representatives gave final approval to the ban, sending it to the desk of Gov. Mike Rounds (R). It would ban all abortions in South Dakota except for those performed to save a mother's life. Doctors who perform banned abortions could face $5,000 fines and prison sentences.
The bill's backers hope it will challenge Roe v. Wade, the landmark 1973 Supreme Court decision that recognized a woman's right to abortion in the Constitution. The new bill does not contain exceptions for pregnancies that result from rape or incest or those whose continuation could endanger the mother's health.
Rounds is reportedly likely to sign it after a legal review. The legislature sent him a similar bill in 2004, but he declined to sign that one, citing a technical glitch in the bill's language.
“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 in a Feb. 25 news conference.
South Dakota is one of the nation's least populous states, but the law would be the most thoroughgoing ban on abortion since the Roe decision was handed down. It would take effect in July if Rounds signs it into law. But both supporters and opponents expect courts to prevent its enforcement until resolution of the lawsuits that are virtually certain to challenge it.
Such lawsuits are exactly what bill supporters have said they want.
“I think the stars are aligned,” said Matthew Michels, the Republican speaker of the South Dakota House, according to the Associated Press.
The nation's largest abortion provider also predicted a long legal battle. “South Dakota's ban is the most sweeping abortion ban passed by any state in more than a decade,” said a statement Planned Parenthood released in response to the bill. “Planned Parenthood will go to court to ensure women, with their doctors and families, continue to be able to make personal health-care decisions — not politicians.”
The organization operates South Dakota's only abortion clinic, located in Sioux Falls. Approximately 800 abortions a year take place there.
Prior to Roe, access to abortion was entirely regulated by the states — with more progressive states legalizing the practice and conservative states generally banning it. If Roe is overturned or modified, the states could revert to their pre-1973 status on the availability of abortion.
With two recent additions to the Supreme Court — Chief Justice John Roberts and Justice Samuel Alito — both abortion supporters and opponents have said the court could move to the right on a number of issues. Roberts replaced late Chief Justice William Rehnquist, an abortion opponent. But Alito replaced retired Justice Sandra Day O'Connor, an abortion-rights supporter. Many of the court's abortion decisions since Roe have come on 5-4 votes, but not all.
Both justices were nominated by President Bush, an avowed opponent of legalized abortion. During their confirmation hearings before the Senate Judiciary Committee, neither Roberts nor Alito directly addressed questions about their views of whether the Constitution protects a right to abortion. But Alito, as a young government attorney in the 1980s, expressed the belief that abortion is not a constitutional right.
Some advocacy groups on both sides of the abortion struggle cast the bill and the legal struggle that will surely result as Roe's battle royale.
“Clearly emboldened by President Bush's judicial appointments, South Dakota has passed dangerous and unconstitutional legislation that its supporters admit is a direct attack on Roe v. Wade,” said Nancy Keenan, president of NARAL Pro-Choice America, in a statement.
A spokesman for the American Life League, a Virginia-based anti-abortion group, told Reuters that South Dakota is “fertile ground” for the test case.
Indeed, South Dakota legislators were informed that an anonymous donor had pledged $1 million to help the state cover its legal bills in defending the law. Lawmakers reportedly set up an account for further donations.
But McConchie of Americans United for Life cautioned that the law could prove to be counter-productive. He noted there are five justices who remain on the court — associate justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, David Souter and John Paul Stevens — who have voted in the past to uphold the core of Roe.
Since the 1992 Planned Parenthood v. Casey decision, when a majority of justices affirmed a basic right to abortion, “there have been at least 10 attempts to get the court to reconsider Roe, and the court has simply demurred each time,” McConchie said. “And it's very likely this time that the court would do so again.”
For example, in the 1990s, the court declined to hear appeals of lower courts' decisions to overturn similar abortion bans in Utah and Louisiana. The court chooses to hear only a small percentage of the hundreds of cases that are presented for its consideration every year.
McConchie also said if the South Dakota challenge goes the wrong way in the courts, it could contribute to a high court or appeals-court decision that adds to the weight of precedent already supporting Roe.
Politically, McConchie said, the publicity surrounding the bill has already “been a great moneymaker for people on the pro-choice side.” Its passage and the money needed to fight it have inspired urgent fund-raising appeals from Planned Parenthood, NARAL and other pro-choice groups.
The bill is HB 1215.
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