The new law in South Dakota banning abortions except to save the life of the mother may be the beginning of a new era of abortion warfare in America. Then again it may not.
The bill itself represents a new advance in cruelty to women. Abortions to preserve the health of the woman, rather than the life, would not be permitted. Abortions following rape or incest would not be permitted. Thus, South Dakota women and girls facing damaging consequences to their health or who had been raped by their fathers would have to travel elsewhere if they didn't want to carry their babies to term.
But beyond what it means for South Dakota, the bill initiates a new battle to change the law on abortion for the nation as a whole. Supporters of abortion rights will challenge the bill immediately, and it will work its way through the courts, possibly ending up at the U.S. Supreme Court. That is what abortion opponents are hoping for.
With the addition of John Roberts and Samuel Alito to the Supreme Court, abortion foes are hoping that the court will finally deliver on the long-sought conservative goal of reversing Roe v. Wade, the landmark 1973 decision that legalized abortion. Both Roberts and Alito said they were respecters of precedent — except when they weren't. The tap dance engaged in by both Roberts and Alito during their confirmation hearings left open the possibility that either one or both might vote to overturn Roe. If both of them did, Roe would be history.
The result would be state-by-state warfare about the legality of abortions. Many state legislatures, including Vermont's, would likely keep abortions legal. But Mississippi may soon follow South Dakota's example, and if the law were upheld, others would follow. In many parts of the nation women seeking a safe and legal abortion would have to travel to another state, an eventuality that would create cruel hurdles both for the poor and the young.
There is a school of thought, even among supporters of legal abortions, that this would not be a bad thing. They say that Roe v. Wade initiated an era of unproductive cultural warfare because it imposed on all the states a requirement that was objectionable to many people. They argue that the nation would more effectively work through the abortion issue by grappling with it at the legislative level. Legal abortions should be the result of a political process, not a judicial process, they say.
Yet Supreme Court backing for the South Dakota law would not end the cultural warfare. In fact, some right-to-life groups are leery of a backlash if more states emulate South Dakota. In following a state-by-state strategy, while worrying of a backlash, their efforts mirror the strategy and the concerns of those pushing another social issue, gay marriage.
If a lower court rejects the South Dakota law on the basis of Roe, the Supreme Court could let that action stand, thus preserving the precedent of Roe. Or it could accept the case and rule that states have the right to determine the law on abortion.
Republicans then would reap what they had sown. Opinion polls suggest the public supports abortion rights, and if a Republican-appointed court ends that right, the public will eventually have its say. In the meantime, women would be subject to a damaging assault on their fundamental freedoms.