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Right wants Supreme Court challenge to Roe
South Dakota's all-out abortion ban

By Elizabeth Schulte | March 3, 2006 | Page 12

SOUTH DAKOTA legislators are taking aim at women's right to choose abortion--and they'll be satisfied with nothing less than total destruction.

In the most sweeping anti-abortion measure in 10 years, the state's Senate and House voted last week for legislation that will ban virtually all abortions. Under the bill--which states that "life begins at the time of conception"--a doctor would face a minimum of five years in prison and a $5,000 fine for performing an abortion, unless it's necessary to save the woman's life.

One of the bill's sponsors, Democratic state Sen. Julie Bartling, said the time is right for a total ban on abortion. "In my opinion, it is the time for this South Dakota legislature to deal with this issue and protect the rights and lives of unborn children," Bartling told reporters.

Senators voted down a proposed amendment that would have made an exception to protect the pregnant woman's health. A proposed exception in cases of rape--raised by a Republican--lost in a 21-14 vote.

Legislators also rejected a proposal that would have taken the ban to South Dakota voters and put the measure on the November ballot. And they voted down a proposal that would have kept state tax dollars from being used to defend the bill--which will almost certainly be challenged in court and could take years to settle. Anti-choice forces in South Dakota hardly need the money, since an anonymous donor has reportedly offered a $1 million donation to defend the new law in court.

South Dakota's anti-choice governor, Republican Michael Rounds, has 15 days to sign the bill into law--and is likely to do so. Two years ago, Rounds issued a technical veto of a similar bill, but only because a court challenge to the legislation would have wiped out all the state's restrictions on abortion until the case was settled.

"I've indicated I'm pro-life, and I do believe abortion is wrong and that we should do everything we can to save lives," Rounds said. "If this bill accomplishes that, then I am inclined to sign the bill into law."

"Long term, I think this [current Supreme Court] is probably more amenable to restricting the impact of Roe v. Wade on a case-by-case basis and an exception-by-exception basis,'' Rounds said. "But in the meantime, this may satisfy a lot of individuals out there who would like to see if there is one slim chance the court may entertain three years from now a direct assault on Roe v. Wade." "I can tell you first-hand we've had people stopping in our office trying to drop off checks to promote the defense of this legislation already," Rounds added.

The South Dakota bill represents a new line of attack for anti-choice forces. Since abortion was legalized in 1973 with the Supreme Court's ruling in Roe v. Wade, the religious right has sought to chip away at women's access to abortion, while avoiding a head-on challenge to Roe.

Now, with the Bush administration's success in packing the Supreme Court with anti-choice conservatives Samuel Alito and John Roberts, some right-wing forces are pushing for a full frontal attack. "It is a calculated risk, to be sure, but I believe it is a fight worth fighting," said Republican state Sen. Brock Greenfield, who is also director of the South Dakota Right to Life.

The right's previous piecemeal strategy has already greatly limited a woman's right to choose in South Dakota. Last year, the state passed five laws restricting abortion. One requires a doctor to tell women that an abortion would end the life of a "whole, separate, unique human being."

South Dakota is one of three states--along with Mississippi and North Dakota--that has just one abortion provider. The doctors, who are rotated and flown into South Dakota from Minnesota, perform abortions only one day a week.

If South Dakota succeeds in its all-out assault on abortion rights, other states will probably follow suit. Ohio, Indiana, Georgia, Tennessee and Kentucky lawmakers are already looking at similar bans.

Nevertheless, some anti-abortion forces are afraid of the backlash such an all-encompassing attack will provoke.

Unfortunately, it's hard to imagine the organizations that claim to defend abortion rights, like NARAL Pro-Choice America, being able to wage the kind of fight it will take to beat back this assault.

"When you see them have a ban that does not include exceptions for rape or incest or the health of the mother, you understand that elections do matter," concluded Nancy Keenan, president of NARAL Pro-Choice America. "We will be very active in '06 and in '08 in electing candidates that represent the views of most Americans."

Keenan is wrong if she thinks NARAL's long-held strategy of electing Democrats is going to work. After all, in the South Dakota senate, five Democrats voted for the abortion ban, one more than voted against it. In the process of showering their so-called political allies with support, liberal women's organizations have done nothing while access to abortion has been chipped away.

More attacks on abortion rights are guaranteed in the coming months. Last week, the Supreme Court agreed to hear the Bush administration's appeal of a decision invalidating the so-called "Partial-Birth Abortion Ban Act of 2003," a law that would ban pregnancies terminated as early as 12 or 13 weeks, and that doesn't include exceptions for the woman's health.

The religious right's success in restricting women's access to abortion--from mandatory waiting periods to parental consent legislation--has built their confidence to take on Roe. An activist movement to defend abortion rights has to organize where it can't be ignored--in the streets.

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