South Dakota Steps Up
Those wise old heads in Pierre have taken the first step toward dismantling the current abortion laws. Both of those august bodies of the South Dakota legislature have passed a new bill banning abortion in all cases except where the mother's life is at risk. And Governor Mike Rounds, a known opponent to abortion, is poised to sign the bill into law. Not only does it ban abortions but it criminalizes them. Anyone convicted under this law would be sentenced to five years in prison for doing something that today is legal and constitutionally protected.
Why is South Dakota acting as the pulse of America, at the forefront of this retreat? There is one privately-funded facility providing abortions in South Dakota at the rate of 800 per year. It is no strain on the treasury. There is private funding for the No Choice side. In short, the government is being subsidized by private interests. That in itself is a nice, first amendment issue. Governor Rounds said that it's a matter of principle: that he would sign it if it would save lives. Although the Governor has questioned if this is the right time for a frontal attack on Roe v. Wade, that won't stop him from signing it. The Governor no doubt is aware that the same powers that toppled Senator Tom Daschle are backing this bill. Governor Rounds certainly realizes who is buttering his bread.
This case or another will reach the Circuit Court of Appeals at some point. The Supreme Court will have to decide if it will hear the case. Although it is facing a decision to hear a line of partial-birth abortion cases now, there are at least four votes lined up in favor of reviewing Roe v. Wade. Assuming it will, the Court may be faced squarely with whether or not to reaffirm that decision.
Even those who support Roe v. Wade must harbor doubts about its validity as legal precedent. Let's be clear that Roe does not hold that there is a constitutional right to choose. Maybe that's the effect of the decision but it isn't the legal basis. Roe also does not say that the right to an abortion is a constitutional right. The framers would never have thought or said that. Roe rests upon the "right to privacy," which is not expressed in the Constitution. The right to privacy grew out of a decision upholding the right of people to practice birth control within their zone of privacy. Even though there is no guaranteed right to such privacy, the Court found that such a right does exist, as one of a penumbra of rights. Let's stop there for a moment.
Penumbra is a kind of shadow, thrown off from the First Amendment. The Supreme Court in 1965 found that the First Amendment, in addition to the expressed rights of free speech, a free press, freedom of assembly and the freedom from establishment of religion, creates something like an umbrella under which other rights are gathered. The right of privacy, which in the Griswold case was a right of marital privacy ("older than our political parties, older than our school system...") was one of those penumbral rights, so basic and fundamental no one would bother to write it down. There is also the Ninth Amendment, which states that there are other unmentioned rights that are not impaired by the failure to mention them. It's one of those catch-all lawyer things, like "including but not limited to..."
Roe v. Wade, as good law, is dicey. Justice Blackmun identified the decision of the mother as a right of personal liberty (as distinct from marital privacy) under either the Fourteenth Amendment (equal rights) or the catch-all Ninth Amendment. Still seems a little tortured. It's questionable jurisprudence because it owes its existence to unspecified rights that are read into the meaning of the document, a gloss on what is actually there. For those Original Intent people, those who insist that Jonah actually was swallowed by a whale, there's nothing there. That makes it somewhat easier to reverse. But the framers did note that they did not cover everything, so part of the original intent was to encompass rights too obvious to mention.
On the other hand, the abortion debate is really shaped around matters of belief, bringing us to religion. The marking of the beginning of life or of potential life is at the heart of the No Choice Movement. Once there is an embryo, they say, a life is in being. Termination of the pregnancy is murder. But that really is a philosophical concept, as is the meaning of existence. It spills over into the freedom from establishment of religion. Truthfully, one's beliefs about abortion are built upon norms, and they in turn arise from beliefs, religious or philosophical depending on your point of view. This is a slippery slope for judges, and it's doubtful that anyone is willing to consider reevaluating Row in terms of the anti-establishment clause (from which we derive a popular polysyllabic word, antidisestablishmentarianism, for those who care). Too bad. This really calls the fundamental question under the First Amendment of whether a majority having one set of religious-ethical beliefs can criminalize the beliefs of the minority. The majority would say that it can when it is saving a life. But that begs the question of when life begins.
The impact of upholding Row on the grounds that the abortion statutes would tend to establish a religion would be tremendous and far-reaching...and one that this court will not undertake.
Why is South Dakota acting as the pulse of America, at the forefront of this retreat? There is one privately-funded facility providing abortions in South Dakota at the rate of 800 per year. It is no strain on the treasury. There is private funding for the No Choice side. In short, the government is being subsidized by private interests. That in itself is a nice, first amendment issue. Governor Rounds said that it's a matter of principle: that he would sign it if it would save lives. Although the Governor has questioned if this is the right time for a frontal attack on Roe v. Wade, that won't stop him from signing it. The Governor no doubt is aware that the same powers that toppled Senator Tom Daschle are backing this bill. Governor Rounds certainly realizes who is buttering his bread.
This case or another will reach the Circuit Court of Appeals at some point. The Supreme Court will have to decide if it will hear the case. Although it is facing a decision to hear a line of partial-birth abortion cases now, there are at least four votes lined up in favor of reviewing Roe v. Wade. Assuming it will, the Court may be faced squarely with whether or not to reaffirm that decision.
Even those who support Roe v. Wade must harbor doubts about its validity as legal precedent. Let's be clear that Roe does not hold that there is a constitutional right to choose. Maybe that's the effect of the decision but it isn't the legal basis. Roe also does not say that the right to an abortion is a constitutional right. The framers would never have thought or said that. Roe rests upon the "right to privacy," which is not expressed in the Constitution. The right to privacy grew out of a decision upholding the right of people to practice birth control within their zone of privacy. Even though there is no guaranteed right to such privacy, the Court found that such a right does exist, as one of a penumbra of rights. Let's stop there for a moment.
Penumbra is a kind of shadow, thrown off from the First Amendment. The Supreme Court in 1965 found that the First Amendment, in addition to the expressed rights of free speech, a free press, freedom of assembly and the freedom from establishment of religion, creates something like an umbrella under which other rights are gathered. The right of privacy, which in the Griswold case was a right of marital privacy ("older than our political parties, older than our school system...") was one of those penumbral rights, so basic and fundamental no one would bother to write it down. There is also the Ninth Amendment, which states that there are other unmentioned rights that are not impaired by the failure to mention them. It's one of those catch-all lawyer things, like "including but not limited to..."
Roe v. Wade, as good law, is dicey. Justice Blackmun identified the decision of the mother as a right of personal liberty (as distinct from marital privacy) under either the Fourteenth Amendment (equal rights) or the catch-all Ninth Amendment. Still seems a little tortured. It's questionable jurisprudence because it owes its existence to unspecified rights that are read into the meaning of the document, a gloss on what is actually there. For those Original Intent people, those who insist that Jonah actually was swallowed by a whale, there's nothing there. That makes it somewhat easier to reverse. But the framers did note that they did not cover everything, so part of the original intent was to encompass rights too obvious to mention.
On the other hand, the abortion debate is really shaped around matters of belief, bringing us to religion. The marking of the beginning of life or of potential life is at the heart of the No Choice Movement. Once there is an embryo, they say, a life is in being. Termination of the pregnancy is murder. But that really is a philosophical concept, as is the meaning of existence. It spills over into the freedom from establishment of religion. Truthfully, one's beliefs about abortion are built upon norms, and they in turn arise from beliefs, religious or philosophical depending on your point of view. This is a slippery slope for judges, and it's doubtful that anyone is willing to consider reevaluating Row in terms of the anti-establishment clause (from which we derive a popular polysyllabic word, antidisestablishmentarianism, for those who care). Too bad. This really calls the fundamental question under the First Amendment of whether a majority having one set of religious-ethical beliefs can criminalize the beliefs of the minority. The majority would say that it can when it is saving a life. But that begs the question of when life begins.
The impact of upholding Row on the grounds that the abortion statutes would tend to establish a religion would be tremendous and far-reaching...and one that this court will not undertake.
posted by Evan Sarzin at 9:28 AM
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