After Roe

PIERRE, S.D. — The Supreme Court imposed abortion on all states in 1972 with its Roe v. Wade and Doe v. Bolton decisions. 

Pro-lifers have objected to those decisions all along. Now, legal scholars are also increasingly apt to find that the Roe court’s arcane privacy-rights reasoning can’t hold up.

If Roe v. Wade is reversed, as the pro-life community hopes, and the legal community generally expects, abortion won’t become illegal overnight. It will be returned to the states to decide.

And the states are all over the map on the issue.

The “bluest” states — those that vote Democratic in presidential elections — are the most likely to side with the Roe v. Wade court in their laws.

But a number of states are starting to push against the federal standard. Indiana, Georgia, Ohio and Tennessee are in the process of introducing legislation that would place tight limits on abortion. Indiana Bill 1096, for example, would ban abortion except in cases where the mother’s life or physical health would be in danger.

South Dakota, though, could be the most pro-life.

Statistically speaking, South Dakota has fewer abortions annually than any other state in the nation, but it is 870 too many for most state legislators. On Feb. 9, two years after a failed attempt to ban abortion in the state, the South Dakota House passed an abortion ban by a 47-22 margin. The bill would ban nearly all abortions in the state, except when the mother’s life is in danger.

The bill now moves on to the Senate.

South Dakota isn’t waiting for the Supreme Court. Supporters of its abortion ban hope the state’s law will create a legal challenge that could itself reverse Roe. With the recent additions of Supreme Court Chief Justice John Roberts and Justice Samuel Alito, pro-life advocates feel they have a better chance of having their side heard.

Restriction Zone

Pro-abortion groups see the increase in pro-life legislation as a threat. The Alan Guttmacher Institute documented 195 state-level abortion restrictions adopted since 2000; one-quarter of those were enacted in 2005.

“Supporters of legal abortion face the bleakest political landscape in recent history,” wrote Rachel Benson Gold, director of policy analysis for the Washington, D.C.-based organization, in a policy analysis.

Examples of abortion restrictions include:

— 29 states mandate that women seeking abortion be provided counseling prior to the abortion;

— 24 states require a waiting period;

— 33 states prohibit the use of public funds to pay for abortions for low-income women;

— 34 states require some parental involvement;

— 21 states require one or both parents to consent to the abortion.

“There is a definite trend that has the abortion industry shaking in their surgical garb,” said Brad Mattes, executive director with the Cincinnati, Ohio-based Life Issues Institute. “These laws are saving tens of thousands of babies and are turning America’s soul back to protecting life within the womb.”

“In most cases, these laws are widely supported,” said Mattes. “What the American people want is to be able to make laws in their individual states that reflect their opinion on the issue.”

A researcher with the Guttmacher Institute was hesitant to say whether the increase in legislation represents a trend among the will of the people in the states where it is being passed.

“I’m hesitant to say that because sometimes those two things don’t seem to correlate,” said Elizabeth Nash, a public policy associate with the Guttmacher Institute. “I’m not sure that’s accurate.”

She said that the increase in abortion restrictions stems from a shift in state legislatures’ priorities.

“Between 2001 and 2004, budget pressures took up the majority of legislative time. All sorts of social issues weren’t addressed,” said Nash. In addition, she said that state legislatures have grown more “socially conservative” over the past 15 years.

Taking On Roe

Whereas previous legislative action has restricted access to abortion, new legislation is attempting to address Roe directly.

“Over the past two years we’ve had this very direct approach taken,” said Nash. “There certainly has been an increase in trying to provoke a direct challenge to Roe. It’s such a new approach that it’s hard to say how it will play out. No one knows.”

Yet, state restrictions on abortion are nothing new. Prior to Roe v. Wade most states had turned back pro-abortion legislation and the state of New York was set to repeal its most permissive law allowing abortion.

“Thirty-three states had voted against permitting abortion,” said Robert Joyce, author of Let Us Be Born, the nation’s first pro-life book. “Most every single overture toward abortion was turned back.”

The South Dakota legislation follows on the heels of a legislative task force that met last September and October. That task force heard from 55 witnesses and investigated six assumptions made by the Supreme Court in the Roe decision, finding fault with each one of them. The task force studied and heard testimony on the science of the unborn child, whether women who undergo abortion are truly informed about the procedure, and the adverse health effects on women having abortions.

Considerable time was spent gathering testimony from embryologists and other scientists to answer whether, in the words of the task force, “the human being, from the moment of conception, [is] a whole separate living member of the species homo sapiens in the biological sense.”

Molecular biologist David Fu-Chi Mark described how new recombinant DNA technologies over the past 20 years provide scientific evidence about the unborn child’s existence.

According to the task force report, “when witnesses supporting abortion were asked when life begins, not one would answer the question, stating that it would only be their personal opinion.”

In addition, the task force received statements from nearly 2,000 women who had abortions.

“Of these post-abortive women, over 99% of them testified that abortion is destructive of the rights, interests and health of women, and that abortion should not be legal,” said the report.

The state, the mother and the child “all have interests that justify changing the laws of the state of South Dakota to protect the child’s life, first and foremost, to protect the mother-child relationship, and to protect the mother’s health,” the report concluded.

“The task force is a blueprint to overturning Roe v. Wade,” said Leslee Unruh of the National Abstinence Clearinghouse in Sioux Falls, S.D. “That is our intent.”

Preventing Abortions?

Planned Parenthood of Minnesota/South Dakota described the task force as both “flawed” and a “cover-up.”

“If legislators want to reduce the need for abortion in South Dakota they must vote to increase access to family planning and educate the next generation on how to prevent an unplanned pregnancy,” said Kate Looby, the state director for Planned Parenthood of Minnesota, North Dakota and South Dakota, in a press statement following the task force’s December release. “Women have abortions because they have unintended pregnancies, not because abortion is safe and legal.”

Others disagree.

“Planned Parenthood’s own data shows that between 65%-75% of women having abortions are using contraception when they become pregnant,” said Steve Koob, director and co-founder of the Dayton, Ohio-based pro-life organization One More Soul. “We didn’t have rampant demand for abortion until we had rampant demand for the birth-control pill. Virtually all abortions are due to contraception.”

“Contraception makes men and women erroneously think that they can engage in a sexual relationship without the consequence of a child,” said Janet Smith, the Father Michael J. McGivney Chair of Life Ethics at Sacred Heart Major Seminary in Detroit, Mich. “It’s not an unintended pregnancy. It means that you’re in a relationship that is not accommodating to a child.”

Those who support the bill see it as protection that’s been a long time coming.

“When [Sen.] Arlen Specter [R-Pa.] stood up at the Alito and Roberts hearings with his ‘super-duper precedent’ showing 38 reaffirmations of Roe v. Wade, he was trying to say that Roe was an impenetrable fortress that no brook will compromise,” said Father Tom Euteneuer, president of the Front Royal, Va.-based Human Life International. “The grassroots movement is assaulting that fortress and building critical mass. Like a flood against a dam, eventually the water will go over the dam. That’s how I see this legislation and all these efforts, as building a critical mass against this fortress.

“Abortion was imposed on this country by seven men,” said Father Euteneuer. “People are trying to turn it back because they didn’t want it in the first place.”

Tim Drake is based in

St. Joseph, Minnesota.