By Evelyn Nieves
Washington Post Staff Writer
Thursday, February 23, 2006
South Dakota lawmakers yesterday approved the nation's most far-reaching ban on abortion, setting the stage for new legal challenges that its supporters say they hope lead to an overturning of Roe v. Wade .
The measure, which passed the state Senate 23 to 12, makes it a felony for doctors to perform any abortion, except to save the life of a pregnant woman. The proposal still must be signed by Gov. Mike Rounds (R), who opposes abortion.
The bill was designed to challenge the Supreme Court's ruling in Roe , which in 1973 recognized a right of women to terminate pregnancies. Its sponsors want to force a reexamination of the ruling by the court, which now includes two justices appointed by President Bush.
"The momentum for a change in the national policy on abortion is going to come in the not-too-distant future," said Rep. Roger W. Hunt, a Republican who sponsored the bill. To his delight, abortion opponents succeeded in defeating all amendments designed to mitigate the ban, including exceptions in the case of rape or incest or the health of the woman. Hunt said that such "special circumstances" would have diluted the bill and its impact on the national scene.
Kate Looby, director of Planned Parenthood of South Dakota, which plans to immediately challenge the ban, said that while she was not surprised, she was still a "little shocked" by the vote. "Clearly, this is a devastating day for the women of South Dakota," she said. "We fully expected this, yet it's still distressing to know that this legislative body cares so little about women, about families, about women who are victims of rape or incest."
National abortion rights organizations said the South Dakota vote has set the stage for a new fight to keep abortion legal at the federal level and in the states. "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," said 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."
The antiabortion movement has focused primarily in recent years on a state-by-state effort to enact restrictions on access to abortion, including pushes for parental-notification laws and waiting periods before the procedure may be performed. A 1992 Supreme Court decision again affirmed a right to abortion in a Pennsylvania case, known as Planned Parenthood v. Casey , that said states cannot put an "undue burden" on women getting access to abortions.
Not all antiabortion groups agreed with the South Dakota supporters' effort to directly challenge Roe .
"If you're just reading the law as it stands now, South Dakota's law doesn't really stand any chance under Roe or Casey . I have to agree with those who think it's remote," said Chuck Donovan, executive vice president of the Family Research Council and a former lobbyist for the National Right to Life Committee.
He said there is not a consensus for a national approach to finding a way to overturn Roe . "There are lots of voices out there and nobody has a single strategy, so South Dakota has stepped in to fill that void," Donovan said.
Still, some abortion opponents are more confident than they have ever been that Roe could be overturned with two new conservative members of the high court, Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. Roberts has not publicly expressed his view on abortion rights. Alito opposed Roe as a young Reagan administration lawyer and had a mixed record on abortion rights while a federal appeals court judge.
On Tuesday, the Supreme Court agreed to decide whether a federal law banning a procedure that opponents call "partial birth" abortion is constitutional. The law passed Congress in 2003 but has been struck down by three federal appeals courts and has yet to take effect.
South Dakota is the first but not the only state to consider new abortion restrictions this year. Ohio, Indiana, Georgia, Tennessee and Kentucky have introduced similar measures.
Rounds has indicated that he would sign the South Dakota measure if it does not jeopardize existing abortion restrictions while the legislation is challenged. In 2004, he vetoed a similar bill because of concerns that abortion restrictions would be eliminated during legal wrangling. Hunt said his bill has addressed the governor's concerns.
Hunt has also said that when the inevitable challenge to the ban is filed in court, the ban's supporters will be prepared for a costly court fight with $1 million already pledged by "an anonymous donor."
Even without this latest ban, South Dakota was already one of the most difficult states in the country in which to get an abortion, those on both sides of the issue say. It is one of three states with only one abortion provider (Mississippi and North Dakota are the others), and its one clinic, the Planned Parenthood clinic in Sioux Falls, offers the procedure only once a week. Four doctors who fly in from Minnesota on a rotating basis perform the abortions, since no doctor in South Dakota will do so because of the heavy stigma attached.
About 800 abortions are performed each year in South Dakota, which has a population of 770,000 spread out over 77,000 square miles. Last year, South Dakota passed five laws to restrict abortions, including one that would compel doctors to tell women that they would be ending the life of a "whole, separate, unique human being." That law has been blocked by a lawsuit filed by Planned Parenthood.