Last week, South Dakota Gov. Mike Rounds signed into law one the most sweeping bans on abortion passed by any state in more than a decade. The measure declares that life begins at conception, and would outlaw all abortions except those needed to save the life of the pregnant woman. The law will not only force a likely court fight, it's exposing a serious internal divide within the pro-life community about how best to make abortion illegal.
Even to many observers of the abortion debate, South Dakota's action seemed sudden. But the bill's primary sponsor, Republican State Representative Roger Hunt, says it was anything but.
"For probably 15 years, South Dakota has been chipping away, enacting legislation dealing with parental notification before a minor can have an abortion; with a couple of aspects of informed consent; with creating the fact that an unborn child can be the subject of criminal activity," he said.
Hunt says legislators decided to pass the ban now -- in effect challenging the U.S. Supreme Court to reexamine the abortion issue -- for a variety of reasons. They include not only the two new Supreme Court justices appointed by a pro-life President Bush, but also the possibility that by the time a court challenge to the law makes its way to Washington, there could very well be a third -- liberal Justice John Paul Stevens, who is about to turn 86.
And Hunt says that circumstances surrounding abortion are very different than they were in 1973, when the court legalized abortion nationwide in Roe v. Wade.
"I do think that after 33 years, and with all of the changes and all of the information, medically and scientifically, that's been established, that that obviously suggests its an appropriate time for the Supreme Court to look at the issue of abortion and apply what we know today to what they decided in 1973," he said.
But others in the pro-life movement think lawmakers like Hunt are being overly optimistic. Clark Forsythe is the lead lawyer for the Chicago-based Americans United for Life. He's helped craft a number of the incremental abortion restrictions states and the federal government have passed over the past two decades, including parental notification and consent laws and increased regulation of abortion clinics. But Forsythe says what South Dakota is doing is premature for a very simple reason -- the votes at the Supreme Court simply aren't there.
"I think you have to count to at least five, if not more, and right now I can only count to 2," he said. "And I don' t know anybody else who can count higher than that."
In other words, the only justices who've publicly said they'd like to overturn Roe are Clarence Thomas and Antonin Scalia. While the court's two newest members, Chief Justice John Roberts and Associate Justice Samuel Alito are considered abortion opponents, Forsythe says no one really knows how they'd rule. "It's all speculation," he said.
Forsythe says he's a lot more confident that a law like South Dakota's is so extreme that lower courts would be forced to strike it down without so much as taking testimony, "and the cases would most likely go to the Supreme Court with not only a bare record, but the Supreme Court would most likely just decline to hear it." That, he notes, would leave South Dakota with no ban, and require it to pay the abortion-rights side's court costs.
Furthermore, says Forsythe, it's a myth that it will take a full-scale ban like South Dakota's to get the high court to reexamine Roe v. Wade.
"The court has reconsidered or addressed Roe in previous cases, the primary one being in 1992, in Planned Parenthood versus Casey in Pennsylvania -- when the Pennsylvania law did not contain any prohibitions. So the court can readdress Roe whenever a statute arguably conflicts with Roe," he said.
But while the core right to abortion probably isn't at any more risk with states passing abortion bans than without it, just the perception could be damaging to the pro-life cause, says Political Scientist John Green of the University of Akron. That's because the majority of Americans are conflicted over abortion -- they support restrictions, but generally want it kept legal.
"It could be that moderate pro-choice voters all across the country may become more pro-chioce if there's a very real prospect that Roe v. Wade would be overturned or significantly changed," Green said.
None of those arguments, however, appears to be having much impact in the states. Mississippi lawmakers will decide this week whether to follow South Dakota's lead -- and at least 10 more states are looking at similar bans.