Abortion, South Dakota and consitutional law

The governor of South Dakota has recently signed a bill banning abortion in that state in almost all circumstances. The only exception is where the life of the woman is threatened. The legislation was described by one New York Times columnist as "an intentional provocation meant to set up a direct legal challenge to Roe v. Wade". Abortion activists are reported to describe the new law as '"blatantly unconstitutional," dangerous and counter to what a majority of Americans would support'. On the first point, they mean it blatantly goes against the way the American Constitution has been interpreted since 1972 i.e. Roe v Wade. "Dangerous" is empty rhetoric. And the fact that the bill is counter to the wishes of the American majority as a whole should be beside the point. This should not be an issue decided by a decree of the federal judiciary. In reality though, it has been. The virtually certain legal consequence of this new statute is that, having been resoundingly shot down by the lower courts, the U.S. Supreme Court will likewise uphold Roe v Wade and strike down this legislation. At least five of the nine supreme court justices, on past form, would do so.

It is unclear how Justices Roberts and Alito would approach the issue. Both expressed strong attachment to the doctrine of stare decisis (precedent) in their confirmation hearings. Both were asked about Roe v Wade. Roberts, while unable or unwilling to answer the question directly, seemed to imply that what was decided in 1972 could not now be uprooted. Alito was less clear on the point, and some of his questioners produced a memo from the 1980's in which he seemed to express a belief that Roe was wrongly decided. I would be surprised if either broke faith with their conservative judicial instincts and voted to overturn Roe. Were I wrong and both Roberts and Alito were inclined to restrict or overturn existing abortion precedents, one must factor in the possibility that by the time of the next major abortion case, president Bush or his successor will have appointed another new justice, further tilting the balance of the court. The possibility of a majority for overturning Roe would then emerge. Indeed State Representative Roger Hunt, sponsor of the South Dakota bill, has pointed to what he considers the likelihood that Justice Paul Stevens (who is 86 years old) will soon retire, to be replaced by a conservative justice. We shall see. There is at least one comparable example of a highly contentious Supreme Court precedent being overturned many years later. In 1954, in Brown v Education, the Court overruled a 58-year old decision (Plessy v Ferguson) and decided that segregation in schools was, after all, unconstitutional.

On the question of the decision in Roe itself, in my view it is one of the worst pieces of constitutional "interpretation" one could ever wish to read - "one of the most egregious pieces of judicial activism ever visited on the the United States". It is one thing to assume an implicit right to privacy in a constitution - though it is not entirely legitimate either - but it is quite another thing to read an almost unqualified right to abortion into a document that is unquestionably explicitly silent on the matter. For one thing, it overrides the power of the states to decide such issues for themselves. And, in any event, the consequence, were Roe overturned would be a reversion to (general) constitutional silence on the matter: Each state could make up its own mind. South Dakota could ban abortion; Massachusetts could have it on demand, and so on. Social mores and opinions already shape the extent of availability of abortion in the various states: In South Dakota, for example, there seems to be only one abortion clinic.

On the broader issue of abortion, I believe it should be illegal in most circumstances. In fact, the South Dakota law to my mind strikes a reasonable balance, although it seems to lack an exception where a woman is pregant as a result of rape. (Admittedly such an exception would prove difficult in practice.) I appreciate women can find themselves in difficult circumstances, for which they were not prepared and had wished to avoid. But in my opinion, counselling and support at such a difficult time is far, far preferrable to terminating a nascent human life.