I'm sure we've all heard that South Dakota just passed a law banning most abortions in a direct challenge to Roe v Wade.
And now we're hearing the same tired rhetoric from both sides of the fight that we've heard since Roe v Wade was first handed down.
And that should tell us something.
A wise man once said that a question solved by force is bound to return in a new form in a new time, and that's what we're seeing here. The Supreme Court had no business ruling in Roe v Wade because there were no clear Constitutional grounds to do so. While some folks correctly argue that the rights enumerated by the Constitution are not the only rights the people retain, and use this unenumerated rights argument to support SCOTUS action, they fail to note the explicit language of the Constitution which says that all rights not given to the Federal government must remain at the State level, or with the people themselves.
Abortion clearly falls in that territory, unless you consider abortion murder of an innocent, in which case, the Federal government does have authority. Of course, if you make that argument, it is logically impossible to go ahead and legalize abortion, so we don't need to worry about that interpretation.
So if the fetus is a person and must be protected, then the government has an interest, if not, then it should bow out and leave the matter to the states.
But that's not what happened. The SCOTUS heard the case and by a 7-2 vote, decided that women had an absolute right to an abortion.
Except of course, that it said no such thing. Based on listening to both sides of the argument, one thing stands very clear; neither side has read the original Roe v Wade decision.
From the majority opinion, written by Justice Blackmun:
...appellant and some amici argue that the woman's right is absolute and that she is entitled to terminate her pregnancy at whatever time, in whatever way, and for whatever reason she alone chooses. With this we do not agree. Appellant's arguments that Texas either has no valid interest at all in regulating the abortion decision, or no interest strong enough to support any limitation upon the woman's sole determination, are unpersuasive. The Court's decisions recognizing a right of privacy also acknowledge that some state regulation in areas protected by that right is appropriate. As noted above, a State may properly assert important interests in safeguarding health, in maintaining medical standards, and in protecting potential life.
...the right of privacy, however based, is broad enough to cover the abortion decision; that the right, nonetheless, is not absolute and is subject to some limitations; and that at some point the state interests as to protection of health, medical standards, and prenatal life, become dominant.
...it is reasonable and appropriate for a State to decide that at some point in time another interest, that of health of the mother or that of potential human life, becomes significantly involved. The woman's privacy is no longer sole and any right of privacy she possesses must be measured accordingly.
With respect to the State's important and legitimate interest in potential life, the "compelling" point is at viability. This is so because the fetus then presumably has the capability of meaningful life outside the mother's womb. State regulation protective of fetal life after viability thus has both logical and biological justifications.
The majority decision in Roe v Wade did not allow abortion on demend, but instead recognized that the State does have a compelling interest in protecting potential life, and does have the authority to limit abortions.
Who knew?
More importantly, given the language of the majority opinion, can South Dakota's new law be reconciled with the Roe v Wade decision? It appears to hinge on one single word:
Health.
Most abortion law includes an exeption for the "life or health" of the mother, as required by Roe v Wade and subsequent decisions. The "health" exception has been so broadly defined as to be meaningless, including such things as financial status and social standing of the mother. South Dakota leaves this word out of their regulation, and on that basis, their new law can be struck down. But it seems to me that a smart lawyer will try to get the SCOTUS to define exactly what "health" means, and how it must be weighed against the potential life of the fetus, as required by Roe v Wade.
The bottom line is that the Supreme Court was the wrong place for this decision to be made, and until that error is corrected, the polarization will continue and the issue of abortion will remain unresolved. After all, if the studies can be believed, while most people support some abortion rights, most people also think that current abortion rights are way too broad. What will be intersting to watch is the fate of lawmakers in the states that vote for abortion bans. Will they be banished at the polls, or will their votes be ratified by a new term?
Posted by Rich at March 7, 2006 12:00 AM | TrackBack