South Dakota v. Roe v. Wade

In a Presidential election year, is it time to test Roe v. Wade from the Right? Republican South Dakota State Representative Matt McCaulley thinks it is, and he was the chief sponsor of the State’s HB 1191 [pdf text], “[a]n Act to establish certain legislative findings, to reinstate the prohibition against certain acts causing the termination of an unborn human life, and to prescribe a penalty therefor.”

Representative McCaulley said that the bill was designed to challenge the notion in Roe that the Supreme Court did not know when human life begins.

From HB 1191:

The Legislature finds that since neither constitutional law nor Supreme Court decision has resolved the question of the beginning of life, it is within the proper sphere of state legislative enactment to determine the question of fact in light of the best scientific and medical evidence. The Legislature finds that the life of a human being begins when the ovum is fertilized by male sperm.
McCaulley avvered that the time for the measure, which passed the South Dakota State House, 54-15, is now: "We are ready to fight for the right to life, as opposed to waiting for it." He told me last week:
"The moral issue of abortion is a battle for the legitimacy of our otherwise civilized society -- it is our treasured Republic that we are trying to save by returning this issue to the control of the democratic process."
It is a novel concept: removing from the purview of unelected courts a matter of life and death, and returning it to those who were democratically elected by the people to whom the laws apply. It is contrary to our form of government that such a concept has become so offbeat. Ironically, whether or not this happens will be a matter of judicial opinion.

Richard Thomas of the Thomas Moore Law Center [press release] has noted:

"This is new and unique legislation that has never been considered by the Supreme Court. The Law Center and our Associate Counsel, Harold Cassidy, are pleased we could be of assistance to Matt McCaulley and South Dakota in their efforts to protect the unborn. While we cannot predict the future, we do know that this legislation establishes significant facts that the courts will not be able to ignore."
South Dakota's Senate has to pass the legislation first [ story], and the Senate State Affairs Committee, fearing that a court would strike down the law, fashioned an amendment which removed the abortion proscription and changed the bill into one which would require doctors only to notify women seeking abortions of the possible risks involved. (The Senate committee's version does, however, hold that South Dakota agrees that science has definitely proven that human life begins at conception.)

The Senate, if it chooses, can reject the amendment and pass the bill as it passed the State house, but at least one Senator has said that he will not support a bill that the courts will overturn, choosing instead to pass a bill which will reduce the number of abortions. The choice, then, is between passing a mild bill which accomplishes very little, or passing a bill which could be all or nothing.

The nothing could be important, as well. South Dakota right to life, according to a story from the Associated Press, opposes the measure because it could offer the Supreme Court a chance to further entrench Roe v. Wade at the expense of South Dakota. The problem with this excuse is that the Roe decision as written, with its trimesters derived "emanations of the penumbra" is bad law and has been treated as such by the Court beginning essentially in Planned Parenthood v. Casey, while the general finding of Roe, that abortion is a civil right, is decided and established law.

If one considers abortion to be the ending of a human life, it strikes me as hypocritical to reject a measure which could end the practice in so-moved States in favor of a measure which might or might not save a few lives. Abortion is currently a judicially established federal right almost separate from the terms of the Roe decision itself, so offering the Court an opportunity to throw the decision out or to defend it by different means is worth the hazard. This is not a matter on which a strong advocate of either direction has an opportunity for cowardice.

Representative McCaulley told me last week:

"The first challenge to the law will come from Planned Parenthood who has promised to fight this bill in the courts. The court system is the primary way that a vocal minority imposes their morality on society -- a morality the minority could not impose on the rest of us if they were forced to work through the democratic process. The court challenge could come as early as July 1, 2004 when the law (if passed) would go into effect."
McCaulley has vowed to fight the Senate amendment and have the Senate vote on his original language. South Dakota Governor Mike Rounds is staunchly Pro-Life and is expected to sign it, meaning it could be working its way through the judicial system during the height of the Presidential campaign season. It would be difficult for a "practicing Catholic" like John Kerry to dodge this question. (John Edwards could repeat that there are "two Americas.")

Posted by at February 24, 2004 5:37 PM