Mississippi and South Dakota: A Tale of Two States
Monday March 6, 2006
Category: Abortion
Here in Mississippi, the state House of Representatives just passed a bill (by a 94-25 margin) outlawing abortion in all cases except for rape, incest, or to save the life of the mother. It's now moving on to the state Senate, where it is expected to pass easily, and then on to an already-promised signature from Governor Haley Barbour.
Meanwhile, in South Dakota, an even more restrictive law--banning abortion in all cases except to save the life of the mother, with no exceptions for rape or incest--has already passed both chambers of the state legislature and is headed to Governor Mike Rounds for another already-promised signature.
Even before the bans came up for a vote, Mississippi and South Dakota were the two least abortion-friendly states in the country. Each has one--and only one--abortion clinic, with many pregnant women opting to travel out of state to have their abortions performed. And in Mississippi, efforts have already been made to delicense the lone clinic from performing second trimester abortions--a clinic that is already garrisoned with intrusive pro-life protesters.
The Mississippi abortion ban was, ironically enough, adopted as an amendment to another, more mundane anti-abortion law--one which would have forced abortion doctors to show pregnant women an ultrasound of their fetus before performing an abortion. So what made the difference? What brought us from a debate over ultrasound and clinic licensing to a frontal assault on Roe?
The answer isn't particularly clear. Supporters of the bill claim that they're emboldened by the appointments of Chief Justice John Roberts and Associate Justice Samuel Alito, but both have been coy about their current views on Roe--and even if both voted to allow a ban on abortion (a statistically unlikely prospect given the past history of Republican nominees on this issue), the precedent would still stand with a 5-4 majority. Only Roberts, Alito, Scalia, and Thomas would vote to strike down Roe; Breyer, Ginsburg, Kennedy, Souter, and Stevens have all ruled to preserve it in the past. And while it's hypothetically possible that one of these five justices will suddenly retire or pass away before it's appealed to the Court, it wasn't a sure bet that the Senate would approve a fifth justice against Roe before--and it certainly isn't now that Mississippi and South Dakota have made abortion bans a live issue.
No, the almost certain outcome of this legislation is that a state or federal district court will declare the laws unconstitutional and the Supreme Court will opt not to hear either case. This was exactly what happened when Utah and Louisiana passed similar bans 15 years ago, when the Court was just as conservative as it is today (with Anthony Kennedy perceived at the time as a reliable anti-Roe vote, and before the liberal Ruth Bader Ginsburg had replaced the more conservative Byron White).
Perhaps this is why pro-life groups are surprisingly unenthusiastic about what would otherwise appear to be two promising pieces of anti-abortion legislation: They have no traction. As reported on LifeNews.com:
[H]as the momentum shifted enough to allow a case to overturn the decision?
Clarke Forsythe, a leading attorney at Americans United for Life, told StateLine last month he doesn't think so.
"I think that it is better policy in January 2006 to be passing legislation that can be enforced and that can protect women and minors from the physical and psychological risks of abortion."
He said states should look to passing laws like parental notification, informed consent requirements or other measures designed to reduce abortions. Such laws have been credited with significantly lowering abortions and some states are seeing their lowest abortion totals since Roe.
Should states approve wholesale abortion bans, like South Dakota, he worries they will be overturned by the courts and further entrench Roe v. Wade as a legal precedent.
"It's as predictable as the sun rising tomorrow at 7:04" that the proposed bans, if enacted, would be struck down, he explained.
So if the abortion bans won't actually be enforceable, why were they passed in the first place? One likely culprit is local politics. While legal abortion is supported nationwide, the majority of Mississippi and South Dakota residents poll strongly favor of reversing Roe. Whatever the tactical merits of an abortion ban, it ends a clear symbolic message, from the incumbents to their constituents, that they are willing to ban abortion if given the opportunity. This can only pay dividends in 2006 and 2007, when Rounds and Barbour, respectively, will face reelection--as will most incumbents in the Mississippi and South Dakota state legislatures.
Here in Mississippi, the state House of Representatives just passed a bill (by a 94-25 margin) outlawing abortion in all cases except for rape, incest, or to save the life of the mother. It's now moving on to the state Senate, where it is expected to pass easily, and then on to an already-promised signature from Governor Haley Barbour.
Meanwhile, in South Dakota, an even more restrictive law--banning abortion in all cases except to save the life of the mother, with no exceptions for rape or incest--has already passed both chambers of the state legislature and is headed to Governor Mike Rounds for another already-promised signature.
Even before the bans came up for a vote, Mississippi and South Dakota were the two least abortion-friendly states in the country. Each has one--and only one--abortion clinic, with many pregnant women opting to travel out of state to have their abortions performed. And in Mississippi, efforts have already been made to delicense the lone clinic from performing second trimester abortions--a clinic that is already garrisoned with intrusive pro-life protesters.
The Mississippi abortion ban was, ironically enough, adopted as an amendment to another, more mundane anti-abortion law--one which would have forced abortion doctors to show pregnant women an ultrasound of their fetus before performing an abortion. So what made the difference? What brought us from a debate over ultrasound and clinic licensing to a frontal assault on Roe?
The answer isn't particularly clear. Supporters of the bill claim that they're emboldened by the appointments of Chief Justice John Roberts and Associate Justice Samuel Alito, but both have been coy about their current views on Roe--and even if both voted to allow a ban on abortion (a statistically unlikely prospect given the past history of Republican nominees on this issue), the precedent would still stand with a 5-4 majority. Only Roberts, Alito, Scalia, and Thomas would vote to strike down Roe; Breyer, Ginsburg, Kennedy, Souter, and Stevens have all ruled to preserve it in the past. And while it's hypothetically possible that one of these five justices will suddenly retire or pass away before it's appealed to the Court, it wasn't a sure bet that the Senate would approve a fifth justice against Roe before--and it certainly isn't now that Mississippi and South Dakota have made abortion bans a live issue.
No, the almost certain outcome of this legislation is that a state or federal district court will declare the laws unconstitutional and the Supreme Court will opt not to hear either case. This was exactly what happened when Utah and Louisiana passed similar bans 15 years ago, when the Court was just as conservative as it is today (with Anthony Kennedy perceived at the time as a reliable anti-Roe vote, and before the liberal Ruth Bader Ginsburg had replaced the more conservative Byron White).
Perhaps this is why pro-life groups are surprisingly unenthusiastic about what would otherwise appear to be two promising pieces of anti-abortion legislation: They have no traction. As reported on LifeNews.com:
[H]as the momentum shifted enough to allow a case to overturn the decision?
Clarke Forsythe, a leading attorney at Americans United for Life, told StateLine last month he doesn't think so.
"I think that it is better policy in January 2006 to be passing legislation that can be enforced and that can protect women and minors from the physical and psychological risks of abortion."
He said states should look to passing laws like parental notification, informed consent requirements or other measures designed to reduce abortions. Such laws have been credited with significantly lowering abortions and some states are seeing their lowest abortion totals since Roe.
Should states approve wholesale abortion bans, like South Dakota, he worries they will be overturned by the courts and further entrench Roe v. Wade as a legal precedent.
"It's as predictable as the sun rising tomorrow at 7:04" that the proposed bans, if enacted, would be struck down, he explained.
So if the abortion bans won't actually be enforceable, why were they passed in the first place? One likely culprit is local politics. While legal abortion is supported nationwide, the majority of Mississippi and South Dakota residents poll strongly favor of reversing Roe. Whatever the tactical merits of an abortion ban, it ends a clear symbolic message, from the incumbents to their constituents, that they are willing to ban abortion if given the opportunity. This can only pay dividends in 2006 and 2007, when Rounds and Barbour, respectively, will face reelection--as will most incumbents in the Mississippi and South Dakota state legislatures.
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