Giving Up Too Much On Choice

By Ruth Marcus
Wednesday, October 11, 2006

At the Sioux Falls headquarters of the campaign to repeal Referred Law 6 -- better known as the South Dakota abortion ban -- is a handlettered sign that sums up the opponents' case: "This law simply goes too far."

Yes, it does. But I worry that those fighting to undo the abortion ban have, with the best of intentions, also gone too far in conceding the moral terrain of the abortion debate.

The South Dakota statute is chilling in its remorseless reach. The sole exception to the criminal prohibition on abortions -- doctors would face up to five years in prison for performing them -- is to save the life of the mother. Rape or incest victims, and women whose health would be jeopardized by carrying a pregnancy to term, get no leeway under the statute, passed overwhelmingly in February by the state legislature.

On one level, then, it's little wonder, especially in conservative South Dakota, that the effort to repeal the law -- it's on the November ballot -- has focused on its inflexibility. After all, exceptions for pregnancies that result from rape or incest are a staple of even the most conservative politicians' political platforms -- President Bush, for one; John Thune, South Dakota's Republican senator, for another. Federal law requires Medicaid funding for abortions in cases of rape or incest.

Given that consensus, it's alarming that the vote on repealing the law may be so close. An independent poll in July found 47 percent of voters opposed, 39 percent in favor. But a more recent poll, commissioned by an antiabortion group, showed the gap much narrower, 47 to 44 percent. Four of the eight Republican state senators who had opposed the ban were ousted in primary elections.

So if the campaign against the law echoes the rhetoric usually employed by antiabortion forces, that may be smart politics, at least in the short term. "South Dakotans agree: honor and protect human life, reduce the number of abortions," opens a new television ad by the South Dakota Campaign for Healthy Families. (If you're confused about which side they're on, this is the group opposing the ban.)

Here's the problem, though, with this apologetic approach: What happens next? The decision to submit the ban to voters, rather than challenge the law in court, where it would almost certainly be overturned, carries twin risks -- failure and success.

If the repeal campaign fails, that could incite antiabortion forces elsewhere, not that they need much prodding. The Louisiana legislature passed -- and the Democratic governor signed -- a similar statute this year, to take effect if Roe v. Wade is overturned. Mississippi came close to enacting a South Dakota-like ban; Ohio could be poised to do so in a lame-duck session.

But if, as is more likely, voters reject the law, what happens if and when antiabortion forces come back with a version more palatable to South Dakotans? The July poll showing 47 percent of voters opposed to the ban found that 59 percent would support it with exceptions for rape and incest.

"I've spent a great deal of time and thought wondering if it would have been wiser to write in the exceptions," House Majority Leader Larry Rhoden told the Associated Press. Next time around, I fear, Rhoden and his colleagues will.

Nancy Keenan, president of NARAL Pro-Choice America, dismisses that worry as "hypothetical," saying that "once the people of South Dakota have spoken, elected officials are going to sit up and take notice." Perhaps, but the history of antiabortion forces hasn't exactly been that they give up easily.

And this is the flaw inherent in the South Dakota strategy. It abandons what for me is the essential question of the abortion rights debate: Who gets to decide? Instead, it silently concedes that this is a matter that can be determined by a legislative majority considering a more situational question: What excuse is good enough -- or, more precisely, what excuse does government deem good enough? Once the argument is framed in those terms, the right to choose as a bedrock guarantee starts to crumble.

Why does this matter? Because contraceptives fail -- and not only in ways that can be remedied by resorting to emergency contraception (not that abortion opponents want to make access to Plan B any easier). Because even the most wanted pregnancies produce tragic genetic anomalies. Because people, teenagers especially, take stupid risks that result in unwanted pregnancies.

Pregnant women in these circumstances face a difficult -- and, yes, even tragic -- decision. But it's a choice that should be theirs, not one that's up for majority vote.

And so I hope the advocates of repeal succeed in overturning the abortion ban. But after that, they will need to figure out how to argue against the next law -- one that, under the terms they have tacitly accepted, doesn't "go too far."

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