S Dakota Abortion law

juliod · Post by **juliod** » Mon Mar 06, 2006 5:53 pm

Will the new law banning abortion bring about the final defeat of the anti-abortion side?

It's a very risky move, and one certainly not supported by more worldy conservative leaders. They want to use abortion to "motivate the base" but don't want to take on a directly an issue that will be a long-term looser for them.

If RvW is overturned, then the repubs are going to have to go out and campaign on a strong anti-abortion platform and they will likely loose. Badly. If they choose not to, then they will loose the support of their base, which will be worse.

OTOH, a rush to the Supreme Court is quite likely to yield just another precedent in support of RvW, and leave them in worse position than before. Much worse. I think the last thing anti-abortion strategists want is an early review of a blanket ban.

My bet: (write this down for consultation later) The Supreme Court will bust a gut to find a technicality on which to throw out this law. Then they won't have to rule on the issues.

DanZ

Chimp · Post by **Chimp** » Mon Mar 06, 2006 8:21 pm

The technicality will be the lack of an exclusion for rape/incest victims.

juliod · Post by **juliod** » Mon Mar 06, 2006 8:32 pm

The technicality will be the lack of an exclusion for rape/incest victims.

No, I don't think that will do it. The legal system is indifferent to rape victims. That's a good reason for many people to oppose the bill, but not a legal technicality. It will have to be something like abortion being improperly defined, or something even more obscure.

DanZ

ST88 · Post by **ST88** » Wed Mar 08, 2006 12:40 pm

juliod wrote:
The technicality will be the lack of an exclusion for rape/incest victims.
No, I don't think that will do it. The legal system is indifferent to rape victims. That's a good reason for many people to oppose the bill, but not a legal technicality. It will have to be something like abortion being improperly defined, or something even more obscure.

There is precedent for striking down an abortion law that does not give provision for the life and health of the mother. The SD law gives provision for the life of the mother (which, ironically I guess, covers partial-birth abortion), but not for the health of the mother. It could be struck down on those grounds.

Source: Abortion law struck down
Court says Virginia's partial-birth ban is unconstitutional because it doesn't protect woman's health

Jose · Post by **Jose** » Wed Mar 08, 2006 2:26 pm

Do we think it's likely that a lower court will strike it down on such a technicality, and the Supremes can escape by not taking it up?

juliod · Post by **juliod** » Wed Mar 08, 2006 4:06 pm

Do we think it's likely that a lower court will strike it down on such a technicality, and the Supremes can escape by not taking it up?

No, that would be the same as upholding RvW. In fact, I don't think it is a technicality. The medical exception depends on RvW. RvW prohibits a prohibition on abortion, but allows the states to regulate it. But they are not allowed to regulate it to death. Part of that is the requirement that any regulations allow for medical exceptions.

To reject this law on the medical exception would be to add another precedent in support of RvW. To uphold this law would be to overturn RvW in entirety, and thus dispell the medical exception.

This is different from the partial-birth abortion ban, which was very much a special case. This isn't a special case, but a general one. Can a state prohibit abortion?

Mr. Can Opener, meet Mr. Can O'Worms...

DanZ

juliod · Post by **juliod** » Wed Mar 08, 2006 4:21 pm

Here's the sort of thing I have in mind. The S Dakota law defines deveral terms, including:

(1) "Pregnant," the human female reproductive condition, of having a living unborn human being within her body throughout the entire embryonic and fetal ages of the unborn child from fertilization to full gestation and child birth;

Note that the definition requires that the fetus be within the female body for a full term. As they've defined it, if you have an abortion you were not pregnant. The SC can throw the law out as unenforceable for this reason.

(A comma between "body" and "throughout" would give the reading they thought they were enacting.)

DanZ

micatala · Post by **micatala** » Wed Mar 08, 2006 6:40 pm

I will say up front that I have some ambiguous feelings regarding the issue of abortion. I do not see it as harmless, and I do not necessarily think of it as something women have a constitutional right to. However, I do not think of it as murder, and I am very reluctant to support anything approaching a ban.

Being a resident of South Dakota, I may even have a chance to vote on this law, should it be referred to a vote under our state's referendum law.

I would say I have been bemused and even appalled at some of the tactics and statements by some of the supporters of this law. It seems to me society would be better served by having people who are more in the middle, rather than on the extremes, drive this debate.

Bill Napoli, a legislator and strong supporter of the bill was on a news show recently (I think it was on the PBS news hour).

Bill pined for the days when a boy who got a girl pregnant was rounded up a the point of a shotgun and married to the girl. He thought we could and should go back to those days.

When pressed about a particular example of a Christian virgin girl being raped and becoming pregnant, he hemmed and hawed and tried to say that such a girl could get an abortion under the 'protecting the life of the mother' clause, saying something like 'she might have been so brutalized and traumatized and feel her life would be essentially ruined forever if she had to bear the rapists child, so yes, I think you could say she could have an abortion under this law.'

Another comic episode was provided by the Task Force that was appointed by governor Rounds to study the issue of abortion. Once again confusing the issues of science and religion, conservatives on the Task Force claimed that 'new science' had 'proved that life begins at conception.' This seemed to me nothing more than a cheap tactic to get around the difficult issue of 'what rights the unborn should have' by punting it into the realm of science. Of course, science takes no position nor can it on what rights anyone should have.

Since signing the bill 'in secret' a few days ago, the governor seems more and more uncomfortable with the position he and the legislature have put themselves in. He at first tried to stay out of the fray by refusing to give interviews or answer questions on the subject. He has since found it impossible to stick to this. He was quoted in today's paper as saying he would take no position on a referendum vote, should that happen. He also pointed out it was not his bill, he didn't write it, he was only responding to what the legislature put in front of him. He is on record as preferring an 'incremental chipping away approach' to getting Roe overturned. He along with many pro-life legislators did not think this extreme approach was the best, but I think it is fair to say that having gotten the troops up in arms and onto the tracks, there was no way they were going to be able to stop the train without considerable political backlash from the conservative pro-life constituency of the state, which is I think considerable.

I have to say I have some sympathy for him, although he did bring this spotlight on himself in many ways by appointing the Task Force in the first place.

At any rate, either because of a court fight or a referendum, the law is not likely to take effect any time soon.

juliod · Post by **juliod** » Wed Mar 08, 2006 9:46 pm

Once again confusing the issues of science and religion, conservatives on the Task Force claimed that 'new science' had 'proved that life begins at conception.'

I read the law as passed. It reads like a Guide to Abortion for the Junior Apologist. They seem to take the position that eggs and sperms are not alive. Very juvenile.

Also, they don't seem to have considered that they have committed the police to investigate all miscarriages to see if any actions were taken that might has killed the fetus. Causing a miscarriage is now a crime in SD.

He was quoted in today's paper as saying he would take no position on a referendum vote, should that happen. He also pointed out it was not his bill, he didn't write it, he was only responding to what the legislature put in front of him.

He's probably being reamed out left and right by the leaders of the anti-abortion movement.

DanZ

ST88 · Post by **ST88** » Thu Mar 09, 2006 12:32 pm

juliod wrote:
Do we think it's likely that a lower court will strike it down on such a technicality, and the Supremes can escape by not taking it up?
No, that would be the same as upholding RvW.

Actually, there is precedent for this. The 8th Circuit (covers SD & other states) has struck down abortion laws that do not make the provision for the health of the mother. Interestingly, this was applied to a partial-birth abortion law from Nebraska.

The 8th Circuit in August 2005 issued its unanimous decision striking down the federal Partial–Birth Abortion Ban Act of 2003.

The 8th Circuit ruled that the Supreme Court's holding in the Nebraska case requires that any ban on an abortion procedure contain an exception for instances when the procedure is necessary to preserve either the health or the life of the mother. The federal ban on partial–birth abortion only contains an exception for when the procedure is necessary to save the mother's life.

Congress attempted to justify the statute's lack of a health exception by expressly finding that partial–birth abortion is never medically necessary. Not persuaded by Congress' finding, the 8th Circuit explained, "There remains no consensus in the medical community as to the safety and medical necessity of the banned procedures." Because some doctors testified that the procedure is sometimes medically necessary, the 8th Circuit ruled, the Supreme Court's decision in the Nebraska case required that the federal ban on partial–birth abortion be declared unconstitutional.
-- http://www.law.com/jsp/article.jsp?id=1140775515432

I take this to mean that any abortion law that does not take into account the health & life of the mother is unconstitutional and would be cut down before it reaches SCOTUS. I agree that this is not necessarily a technicality (although the Right may treat it as such), but RvW is not the be-all and end-all of abortion decisions. To overturn RvW, you must first overturn all of the decisions that have upheld it. And there are separate decisions about the implicit privacy provision that provides the underlayment for RvW. Justice Thomas does not believe in stare decisis ("the power of precedent"), but the two new justices have said that they do.