Chicago Tribune Editorial - South Dakota's abortion error

South Dakota's abortion error
Copyright © 2006, Chicago Tribune

Published March 7, 2006

In signing a bill Monday virtually banning abortion, South Dakota Gov. Mike Rounds has created an unworkable law--and almost certainly damaged the anti-abortion cause.

The impetus for this bill was the arrival of John Roberts and Samuel Alito on the Supreme Court. Both are thought to be skeptical, at least, of the court's decisions creating a constitutional right to abortion. But even if we assume they are open to scrapping the 1973 Roe vs. Wade verdict, the South Dakota law is clearly doomed.
In the first place, the court very rarely repudiates a major precedent merely because of a change in personnel. In addition, five of the nine justices are on record supporting that decision. About the best anti-abortion groups can hope for is to lose 5-4 instead of 6-3.

And even that is far from certain. As conservatives, Roberts and Alito have stressed that they will not lightly overturn venerable precedents. Forced to confront the issue so early in their tenure, the court could end up reaffirming Roe by an even bigger margin than before--effectively settling the question for another 30 years.

The other problem is that while a majority of the people in South Dakota may favor a ban, a clientele for abortion still exists. The state's only abortion clinic serves 800 patients a year. If those women could not get an abortion in South Dakota, odds are good they would travel to a neighboring state to get it. Or they might obtain illegal abortions, with the attendant risks.
As Prohibition proved, a mere law can't make people abandon something they value. Changing behavior requires changing basic attitudes--to eliminate not just the availability of abortion, but also the demand for it.

Though the activists on both sides of this debate get most of the attention, many people favor the goal often stated by President Bill Clinton, which was to make abortion "safe, legal and rare." The anti-abortion movement has had some successes in recent years, notably on "partial-birth" abortion and parental notification laws. But it has not been able to convert widespread ambivalence about abortion into firm opposition.

What South Dakota lawmakers have approved may shake some people out of ambivalence, but not in the direction the lawmakers favor. The ban allows no exceptions for rape, incest or serious dangers to the mother's health. Only when the mother's life is at risk would it be allowed. Faced with this ban, voters on the fence are more likely to be pushed toward the abortion-rights camp than pulled away from it.

Roe vs. Wade was a legally dubious decision that deprived the states of the power to make policy on abortion and caused a lasting polarization of the debate. What the South Dakota legislature has approved, however, does not promise to change that state of affairs.