GUEST COLUMN

(10/9/2006)

South Dakota Abortion Ban: Roe Was Bad Law, Should be Abandoned

Overturning Roe is about doing what's right

By Rory King

The 1973 decision of the United States Supreme Court, in Roe v. Wade, has come under almost universal criticism. It may be one of the most criticized decisions in the history of the Court, with the exception of the Dred Scott decision. Even Justice Ginsberg, one of the most liberal members on the Court, has criticized the decision.

There is obviously much to criticize. On the basis of a “privacy” right, which is nowhere to be found in the Constitution, the seven-member majority declared that a woman has a constitutional right to an abortion, and that the laws of a majority of the states, which had been on the books for more than a century, were unconstitutional.

Justice Blackmun found that, given the current state of medicine knowledge, it was impossible to conclude when life began—and he then proceeded to conclude that the life begins at birth—and that life within the womb is only “potential human life”, which conclusion is philosophical basis for the Court’s decisions since 1973.

Justice Blackmun barely mentioned thousands of years of Judaic-Christian proscription of abortion, and focuses on the fact that it was allowed freely in the pagan cultures of ancient Greece and Rome. Acknowledging that the Hippocratic oath, which not only prohibits abortion, but even prohibits “counseling” a woman to get an abortion, had long stood as “the ethical guide” for the medical profession, referring to it as “a long-accepted and revered statement of medical ethics,” Justice Blackmun ultimately dismissed it because it reflected the “minority” view of the Pythagorean philosophers in ancient Greece. Justice Blackmun then adopted a “trimester” standard for determining when the State can regulate abortion, which has ultimately led to the availability of abortion on demand, and to the death of almost 45 million human beings.

The decision is ripe for reversal. With the appointments of Chief Justice Roberts and Justice Alito, it appears to me that four out of the seven justices on the Supreme Court would very likely vote to overturn Roe. Four of the Justices would vote to affirm. The ninth justice, Justice Kennedy, is the swing vote, and I think he could be won over. He filed a stinging dissent in the case of Sternber v. Carhart, which overturned Nebraska’s partial birth abortion statute, pointing out: “The political processes of the State are not to be foreclosed from enacting laws to promote the life of the unborn and to ensure respect for all human life and its potential.” The new dynamics on the Court, with the Chief Justice being perceived as a strongly pro-life justice, could very well contribute to changing Justice Kennedy’s position. Further, if the statute were challenged, the case probably wouldn’t be argued for 3-5 years, and there would likely be a new judicial appointee who could swing the vote.

This statute, and the Task Force report which supports it, are the perfect opportunity for the overturn of Roe. The facts under which Roe was decided have drastically changed, as established by the Task Force Report. The report virtually knocks the legs out from under Roe v. Wade. The two pillars upon which Roe v. Wade rests are, first, the conclusion that the life within the womb is only “potential” human life; and, second, that, in light of the fact that first trimester abortions are safer that childbirth, the State has no compelling interest in “protecting” women from the harm of abortion.

First, microbiological and ultrasound developments since Roe have established irrefutably that a separate, complete, unique human being comes into existence at conception, that the fetus has neurological responses, including reactions to pain, at a very early stage of development, that the fetus begins to look like a human being at a very early stage, and that the fetus becomes a separate, unique patient of the obstetrician or neo-natologist, and is treated medically, from a very early stage. Medical science has conclusively established that human life begins at conception.

Second, unfortunately, we have had the experience of women who have undergone some 45 million abortions since 1973. These experiences were, of course, unavailable at the time of Roe, and they establish some startling facts. They establish that that there is no real doctor patient relationship between the physician who performs the abortion and the patient, that the patient is not properly informed about the procedure before she undergoes the abortion, being told that the human being within her is only a “lump of tissue”, and that, upon learning the truth, that abortion ends the life of a human being, many women are devastated emotionally.

But, regardless of whether this ease is the vehicle for overturning Roe, South Dakota has done what is right. Sometimes, a legislative body must forget about strategizing and calculating the odds, and simply do what is right.

Rory King is an Aberdeen lawyer. He serves on the executive board of VoteYesForLife.com.