South Dakota’s governor signed a bill Monday virtually outlawing abortion, and we understand that similar legislation is on the drafting table in 10 other states. Colorado Springs Rep. David Schultheis says he is inclined to introduce a bill here as soon as this year.
The South Dakota law takes effect in July, presenting a direct challenge to the 1973 Roe vs. Wade U.S. Supreme Court ruling that established a woman’s right to an abortion in all 50 states. The new law allows an exception only if the mother’s life is in danger. It does not take into account rape or incest.
Colorado law carries one significant restriction on abortions, requiring doctors to notify the parents of a minor in writing at least 48 hours before the procedure is to be performed.
Legal scholars anticipate that the South Dakota law will be rejected in lower courts because it goes against Supreme Court precedent. Its sponsors would then seek a review by the Supreme Court, where Chief Justice John Roberts and Associate Justice Samuel Alito would be tested on the subject that loomed so large during their confirmation hearings.
Since 1973, the Supreme Court has used Roe as a basis for many other rulings, and upheld it 14 years ago in the case of Planned Parenthood v. Casey. Chances are Roethe ruling can survive the South Dakota challenge, too, since five of the nine justices on the current court have previously voted to reaffirm it.
But supporters can’t be complacent with Roe defender John Paul Stevens turning 86 next month. Another court appointment by President Bush could set the stage for drastic changes to the ruling.
Last month, the U.S. Supreme Court agreed to hear a case that challenges a 2003 federal law prohibiting doctors from performing late-term abortions.
Three courts had struck it down because it flouts a 5-4 Supreme Court ruling in 2000 that requires an exception to protect the health of the mother. Then, Justice Sandra Day O’Connor cast the decisive vote. She has now retired and been replaced by Alito, who has not disclosed how he would vote.
The partial birth case is expected to be taken up by the court this fall. The South Dakota case would come much later.
Polls show that the majority of Americans favor restrictions on abortion but not an outright ban – in that sense, South Dakota is clearly out of sync in concocting such a radical challenge to Roe.
Most Americans seem to favor the policy framework described by President Bill Clinton, to make abortion “safe, legal and rare.” That should be the nation’s goal.
