Abortion in America

The elements seem to be falling into place for a perfect storm over abortion in America.

South Dakota, already the toughest state in which to get an abortion, has enacted a law that would make it a felony for a doctor to perform an abortion under any circumstance other than saving a mother’s life. That’s right, your daughter gets knocked up as a result of rape or incest and she’s going to have to find a back-alley solution if she has to terminate the pregnancy in that state and then face the prospect of going to jail.

(The hypocrisy of supporters of the South Dakota law should not go unnoticed. That state's governor, in signing the law, said that the "true test of a civilization" was how it treated "the most vulnerable and helpless," including "unborn children." But the three worst counties in all of the U.S. for vulnerable and helpless children, that is those living in poverty, are smack dab in South Dakota.)

The South Dakota law is bound to embolden anti-abortion legislators in other states. It is being challenged by pro-abortion forces as being unconstitutional and at odds with Roe vs. Wade, the landmark 1973 Supreme Court decision that made abortion legal. Roe held that states cannot put an "undue burden" on abortion rights and cannot ban abortions necessary to preserve a mother's health, not merely save her life.

Anti-abortion groups have come out in droves to defend the South Dakota law, and so another epithet-punctuated battle for the half dozen or so people in America who haven’t made up their minds is underway.

The challenge to the South Dakota law is likely to bump its way up to the U.S. Supreme Court, which includes two new conservative Bush appointees – Chief Justice John Roberts and Justice Samuel Alito -- who both have impeccable anti-abortion credentials.

The possibility that moderate Justice John Paul Stevens may retire soon would tip the high court’s balance to the right and, according to the conventional wisdom, increase the possibility that Roe vs. Wade will be overturned.

And thus an era of semi-legalization -- and perhaps even complacency -- in the history of abortion in America will end and a new era of repression of women’s reproductive rights will begin.

Or will it?

BACKGROUND

Some 1.3 million legal abortions were performed in the U.S. in 2004, the last year for which figures are available, according to the Alan Gutmacher Institute, pro-choice Planned Parenthood’s research affiliate, which consistently tracks higher annual numbers that the presumably impartial Centers For Disease Control. (In a rare meeting of the minds, anti-abortion groups like the National Right to Life Committee cite the Guttmacher stats because they’re higher.)

The 1.3 million figure is by no means the highest since Roe vs. Wade. In fact, it was the lowest since the number spiked at over 1.6 million in 1990 and is more reflective of late-1970s levels.

Why?

* Women’s attitudes toward abortion have become more conservative, according to some public-opinion polls.

* Despite Roe vs. Wade, it is increasingly difficult to find clinics and hospitals that will perform abortions, especially for poor women and women in rural areas, who often are poor. According to one study, 87 percent of the ocunties in the U.S. have no abortion providers.

* Birth control is more widely available and birth-control technology is better, thereby lowering the number of unwanted pregnancies.

FOREGROUND

It may take years for the challenge to the South Dakota law to reach the high court, but analysts already are pondering the fallout if Roe vs. Wade is thrown out. The major impact of such a decision certainly would be to again give states final say about whether abortion would be legal and under what circumstances.

One of the better analyses of what that would mean has been compiled by Josh Goodman at governing.com. He suggests that:

* Some 23 states probably would make abortion illegal, 20 states would keep abortion legal and 7 states would be “battlegrounds” where the effect of Roe vs. Wade being overturned is tough to predict.

* Just over 137 million people live in states where abortion would remain legal, while 129 million people live in states where it would be made illegal. There are 30 million people in the “battleground” states.

* Of the 23 states that probably would ban abortion, President Bush carried all but four in 2004. Alternately, John Kerry carried 14 of the 20 states where abortion would remain legal. No surprise there.

FUTUREGROUND

While I adamantly support women’s reproductive rights, including the right to have a safe abortion, as a man I feel somewhat uncomfortable commenting on the subject. After all, men make abortion necessary. It is usually men who perform abortions. It is usually men who make the laws and as judges render the legal decisions about abortions. But men also need to speak up for the rights of their spouses, daughters and sisters.

Having so noted that, I believe that it is appropriate for this Sensitive New Age Old Guy to throw in his two-cents worth. Here goes:

I have come to believe that Roe vs. Wade is bad law.

That is not to say it should be overturned, but it was bad precedent (to use legalspeak) because it legalized abortion but left it to states to determine what constituted legal abortion.

But that doesn’t matter because I believe Roe vs. Wade will be upheld because the South Dakota law will be struck down.

Pro-life absolutists – the hair on fire kill the abortion doctors crowd – would seem to have gotten a gift-wrapped present with the South Dakota law, but if you listen closely, there’s a tick, tick, ticking sound inside.

The law, which could lead to first-degree murder charges against abortion doctors and criminal charges against those South Dakotan rape and incest victims, is simply too punitive.

It is my belief that even a U.S. Supreme Court with Roberts, Alito and a conservative replacement for Stevens will overturn the South Dakota law or refuse to hear the appeal of a lower court decision overturning it, thereby turning the conventional wisdom on its ear and winning pro-lifers a welcome reprieve, although only a temporary one as a new era of abortion battles lurches forward.

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