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February 23, 2006
South Dakota Bans Abortions

South Dakota's Senate passed an abortion ban handily yesterday, 23-12, and sent both chambers into conference to hammer out a final version for Governor Mike Rounds to sign:

South Dakota moved closer to imposing some of the strictest limits on abortion in the nation, as the state Senate approved legislation that would ban it except when a woman's life is in danger.

The bill, designed to wage a national legal fight about the legality of abortion, passed 23-12 Wednesday. It next returns to the state House, which has passed a different version.

The measure would make South Dakota the first state to ban abortion in nearly all circumstances. Doctors would face up to five years in prison for performing abortions unless a woman needed one to save her life.

The primary aim of this bill isn't to outlaw abortions -- it's to challenge the Supreme Court on Roe v Wade by presenting them with such a law so clearly at odds with the original decision that the court will have to explicitly review the ruling. Other states have passed restrictions based on age and consent that have allowed the court over the past several years to nibble at the edges of Roe without having to face it honestly.

And in all honesty, Roe was bad jurisprudence, no matter what one thinks of the outcome. The reasoning behind Roe allows any Supreme Court at any time to declare anything unconstitutional, as long as five jurists can find an emanation from a penumbra of a out-of-context piece of text that may or may not have anything to do with the issue at hand. It certified a procedure that should have a fancy name in Latin, but it would nonetheless mean "making it up as we go along". Without a doubt, the South Dakota legislature would not have attempted to do this ten years ago with the composition of the Supreme Court at that time, but now they feel they have as receptive a panel as they are likely to ever have.

They may find themselves disappointed. John Roberts and Samuel Alito may indeed vote to strike down Roe, but it's no sure thing. Both men, especially Roberts, gave strong respect to stare decisis, and the courts have provided plenty of reaffirmation of Roe afterwards. In passing a ban that doesn't take into account rape and incest, the bill itself may give the court sufficient cover to reject it without delving too deeply into Roe. Perhaps the legislators thought those exceptions would prove too difficult to administer, but their exclusion gives another reason for the bill's defeat.

What I find so interesting is how unpopular abortion has become in South Dakota. This is a state, after all, that elected Tom Daschle to a string of Senate terms until his obstructionism cost him the job. It also narrowly elected Democrat Tim Johnson to the other Senate seat in 2002. Yet the state Senate voted for the most restrictive abortion ban in decades by an almost 2-1 vote. It appears that the popularity of this procedure is waning, and that portends many such challenges in the future, even if this particular effort fails.

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Posted by Ed Morrissey at February 23, 2006 6:21 AM

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